Professional Documents
Culture Documents
GOVERNMENT GAZETTE
STAATSKOERANT
VAN DIE REPUBLIEK VAN SUID-AFRIKA
It is hereby notified (hat the President has assented Hicrby w o r d bckend gcnl:iak d;lt die Prc\idcnt \y
to the following Act which is hereby published for general goedkmring geheg Iwt MI] die (mdel-st;i:lndc W e t v:it I]icrhy
inlormation- [m algenmnc inligting gcpuhliwx! m tml:--
No. 36 of 1998: National Water Act, 1998. No. 36 van 199X: Nusitmitlc Watcrwct. 199X,
2 N(I 19182 GOVERNMENT GAZETTE, 26 AUGUST 198
ACT
10 provide for fundamental reform of the law relating to water resources; to repeal
certain laws; and to provide for matters connected therewith.
PREAMBLE
Recognizing that water is a scarce and unevenly distributed national resource which
occurs in many different forms which are all part of a unitary, inter-dependent cycle;
Recognizing that while water is a natural resource that belongs to all people, the
discriminatory laws and practices of the past have prevented equal access to water, and
use of water resources;
Acknowledging the National Governments overall responsibility for and authority
over the nations water resources and their use, including the equitable allocation of
wtiter for beneficial use, [he redistribution of water, and international water matters;
Recognizing that the ultimate aim of water resource management is to achieve the
sust~inable use of water for the benefit of all users;
Recognizing that the protection of the quality of water resources is necessary to
ensure sustainability of the ntitions water resources in the interests of all water users;
and
Recognizing the need for the integrated management of all aspects of water resources
and, where appropriate, the delegation of management functions to a regional or
catchrnent level so as to enable everyone to participate;
INDEX
2 I. Water use
22. Permissible wuter use Z()
23. Determination of qu:mtity of w~tcr which tntiy be allocuted by resp(msible
authority
24. Licenccs tor use of w~[er found underground (m pr(~per{y ot mmlher person
~~. Tr~lnsfcr of w;ltcr usc ilLllllorlSLl(i ollS
26. Rcgulutions on (Im usc of wuter 25
3 7 . Conlrolltxl aclivity
(? N,) l~)1N2 (government GAZETTE, 26 AIIGLIST 1998
.
Act No. 36, 1998 NATIONAL WATER ACT. 199X
()).
70,
71.
72.
73.
1-1.
10
75,
70.
77,
78.
7),
X().
xl,
82.
83.
M.
85.
86,
87.
88.
89,
90,
91.
~)?,
93.
94.
95, -H)
9(>
07,
~)x.
~)~) 45
Ill N(I. l~Jl X2 GOVE LNMENT GAZETTE. 26 AUG[JST 1998
117. Definitions
118. Control measures for dam with safety risk
119. Responsibilities of approved professional pers w?s
I 20, Registration of dam with safety risk 25
121. Factors to be considered in declilring diim or ca .egory of dams with safety risk
122. Exemptions
123. Regulations regarding dilm safety
Part 2: Servitudes
126. Definitions
127. Acquisition of servitudes 35
128. Rights and duties of servitude holders i~nd Ian{ Iowners
129. Procedure for acquisition and amendment ofs :rvitudes
130. Powers of High Court in respect of Cli]im for : ervitude
131 Compensation payable for granting of servituc es
I 32 Noting of servitude and amendment by endors ment against title deed 40
133 Cancellation of servitude
134 Joint wtiterwork involving servitude
151. Otlences
152. Enquiry in respecl {)t compenw[i(m Ior barn) loss or damage suffered
153, Award (JI dam:iges
I 54. otlcnces in reliition to employer and employt e relationships
155, Interdict or other (waler by High Court
Part I: I.iahility
SCHEDULES
CHAPTER 1
This Chapter sets out the fundamental principles of th, Act. Sustainability and equity
are identl~ed as central guiding principles in the motection, use, development,
conservation, managetnent and control of water resources. These guiding principles
recognise the basic human needs of present and fu ure generations, the need to
protect water resources, the need to share some water J esources with other countries, 10
the need to promote social and economic developmetu through the use of water and
the need to establish suitable institutions in order to a thieve the purpose of the Act.
National Government, acting through the Minister, is r xponsiblefor the achievement
of these fundamental prznciples in accordance with t~ ~e Constitutional mandate for
water reform. Being empowered to act on behalf of th e nation, the Minister has the 15
ultimate responsibility to fuljil certain obligations rela !ing to the use, allocation and
protection of and access to water resources.
This Chapter also contains de~nitions explaining he meaning of certain words
used in the Act as well as provisions regarding the int rpretation of the Act.
1. ( 1 ) In this Act, unless the context shows that anotter meaning is intended
(i) aquifer means a geological formation whicn has struc~ures or textures that
hold water or permit appreciable water move]nent through them;
(ii) borehole includes a well, excavation or my artificially constructed or
improved underground cavity which can be u ;ed for the purpose of 25
(a) intercepting, collecting or storing water in or removing water from an
aquifer;
(b) observing and collecting data and inform ]tion on water in an aquifer; or
(c) recharging an aquifer;
(iii) catchment, in relalion to a watercourse or watercourses or part of a 30
watercourse, means the area from which al y rainfall will drain into the
watercourse or watercourses or part of a water :ourse, through surface flow to
a common point or common points;
(iv) charge includes a fee, price or tariff impost d under this Act;
(v) conservation in relation to a water resoun e means the efficient use and 35
saving of water, achieved through measures such as water saving devices,
water-efficient processes, water demand management and water rationing;
(vi) Department means the Department of Watt r Affairs and Forestry;
(vii) Director-General means the Director-Genel al of the Department;
(viii) entitlement means a right to use water in terms of any provision of this Act 40
or in terms of an instrument issued under this Act;
(ix) estuary means a partially or fully enclosed body of water
(a) which is open to the sea permanently or ~eriodically; and
(h) within which the sea water can be diluted, to an extent that is measurable,
with fresh water dmined from land; 45
(x) government waterwork means a waterwork owned or controlled by the
Minister and includes the land on which it is : ituated;
(xi) instream habitat includes the physical stru(ture of a watercourse ond the
associated vegetation in relation to the bed of the watercourse;
(xii) Minister means the Minister of W~ter Affairs and Forestry: 50
(xiii) organ of state has the meaning set out in se ;tion 239 of the Constitution;
(xiv) person includes a natural person, a juristic p :rson, an unincorporated body,
an association, an organ of state and the Mini! ter;
16 N() l~JIX? (; OVEII NMENT [; AZE:[lE;, 26 AUGUST 1998
(xv) pollution means the Llircct or indirect alterati m of the physical, chemical or
biological properties of a water resource so as to make it
~css l;t [;)r any trcnclicial purpost l~)r which it may reasonably be
expected to bc used: (w
harmful or Potcnliallv harmfu- 5
(fi~{) to the weltare. health (w safc[y of hu nan beings;
(Ml) to any aquatic or non-aquatic organi ,ms;
(<() [o the resourm quality: or
(old) to property;
(xvi) prescribe means prescribe by regulation: I ()
(xvii) protcc[ion, in relation to a water resource, ].lean-
(CJ) maintenance ol the quality of (he water I esource to the extent that the
water resource may be USCLI in an ccologi ally sustainable way;
(/)) prevcnti(m of (he degradali(m 01 the wale rcsouru: and
([) the rehabilitation of the water resource; 15
(xviii) Reserve means (Iw quantity anLI quality of\ /ater requirecl-
(fl) to satisfy basic butrlan needs by secur ng J basic water supply, as
prescribed umlcr tbc Water Ser\ices Act. I )97 (Act N(), 108 ~}f 1997). for
people who are now or who will, in (he r, as(mahly near tuturc. be
(i) relying upon; 20
(ii ) t:iking w;ltcr from: (w
(iii ) being sLlpplied from,
the relevant water resource: anLI
(b) to prolect aquatic ecosystems in (mlcr to s :cure ccoiogically sustainable
dcvcl(qlmcnt ancl use of [he relek:ult watt resource: VJ
(xix) rcsfmrcc qu:ili(y rnc:lns the quality of till II-: :ispects of a water resource
including-
((/) the qllillltl[y. p~l[[drll, [1111111~, Wllkr ICVL21 [1 ILI 21 SSLlrWICe Of i!IStrClllll f]OW;
(/~) the waler q u a l i t y , incluLling Ilw physi( a l , chemical and bi[~logical
characteristics of (he water; 30
(c) the character and condition of [be instreal 1 and riparian habitat: and
(~/) the characteristics, L(mdition and distrihul ion of the aquatic biot:l:
(xx) responsible auth(wily, in relation to a speci( c power or dLity in respect of
water uses. mean--
((l) it that power or duty has been assigned b y the Minister to a catcbmen[ 35
nmnagcment agency. that catchmcnt man: gement agency: or
(b) it that power or Lluly has nt~t been st) awi, med. the Minister;
(xxi) riparian habitat includes the physical structu] e and associated vegetation of
the areas associated with a watercourse which a -e commonly characterised by
alluvial soils, and which are inundated or tlo xled to an extent and with a 40
frequency sufficient to support vegetation of St ecies with a composition and
physical structure distinct from those of adjacc nt land areas;
(xxii) this Act includes any regulations made undt r this Act:
(xxiii) waste includes any solid material or material bat is suspenckxi, dissolved or
transported in water (including sediment) and w hid] is spilled or deposited on 45
land or into a water resource in such volume. composition or manner as 10
cause, or to be reasonably likely to cause. the vater resource to be polluted:
(xxiv) watercourse means-
((I) a river or spring:
(h) a natural channel in which water flows ret:ular-ly or intermittently: 50
({) a wetland. lake or dam into which, or fror 1 which, water flows: und
(d) any collection of water which the Minister may, by notice in the G[/:c/tc,
declare (o be a watercourse,
and a reference to a watercourse includes. whee relevant, its bed and banks:
(xxv) water management area is an area establish 1 as a management unit in the 55
national water resource strategy within whit h a catchment management
agency will conduct the protection. use. develo mwnt, conservation, manage-
ment and control of water resources:
lx ?J(). 1{) I S2 GOVt RNMENT (; AZETTE. 26 A(IGLIST 1998
Purpose of Act
2. The purpose of [his Act is to ensure that (he nation+ w~ter resources are protected.
used, developed, conserved, managed and controlled i[ ways which take into account X5
amongst other flrctors
(CJ) meeting the basic human needs of present an i future generations:
(b) promoting equitable access to water;
(() redressing the results ot past raciol and gendt r discrimination;
(d) promoting the etlicient, sustainable and bene ici:d use of water in the public 30
interest:
(c) Iacili[atin.g social and ecxmomic tievelopmenl,
(/) providlog for growing demand for woter use:
(~) protecting uquatic ;Ind msociated ecosystems and their biological diversity:
(h) reducing and preventing polluti(m :md degrfic ation of water resources: 35
(i) meeting international obligations;
(j) promoling darn safely;
(k) managing tloocis and droughts,
and for achiev in: this purpose. to establish suit:~b]e ins! itutions and to ensure that they
huve appropritite community. racial and gender reprcsel Itation. 40
3. ( 1 ) As the public trustee of the nation-s water resol rces the National Government.
acting through the Minister. must emsurc that water s protected, used, developed,
conserved, m;muged tind controlled in:1 sustainable and ~ quitable manner, for the benefit
of :111 pcrs(ms und in uccodance with its cons[itu(ion;(l nwld;l(c.
(?) Without limiting subsection ( I ), the Minister is Llltimiltely responsible to ensure
tba[ wutcr is allocated equittibly and used bcneliciall, I in the public interest, while
promoting cmvironmentul volues.
(3) The National Government. octing through the Mit ister. hus the power to regulate
the USC. !low :md control of :111 water in the Republic.
2(J N(1. 19 I X2 (;OVF RNMENT GAZETTE. 26 AU(;UST 1998
4. ( I ) A person may use w:iter in or from a water resource for purposes such :LS
reasonable domestic use, domestic gardening, anim II watering, fire fighting and
recreational use, as set out in %hedule 1.
(2) A person may continue with an existing lawful water use in accordance with 5
section 34.
(S) A person may use water in terms of a general aut mrisation or Iicence under this
Act.
(4) Any entitlement granted to u person by m under [I is Act replaces any right to use
water which that person might otherwise have been abl : to enjoy or enforce under any 10
other law
(a) to take or use water;
(h) to obstruct or divert a flow of water:
([) to affect the quality of any water;
(d) to receive any particular flow of water; Is
(e) to receive a Ilow of water of any particular qilality; or
(,/) to c~)nstruct. operate or maintain any waterw~ Irk.
CHAPIER 2
This Chapter deals with the development of stra, egies to facilitate the proper 20
management of water resources.
5.( I ) Subject to subsection (4). the Minister must, as soon as reasonably practicable,
by notice in the Guzefte, establish a national water reso ~rce stmtegy.
(2) The notice must state the address where the strat~ gy may be inspected.
(3) The water resources of the Republic must b: protected, used, developed, 35
conserved, managed and controlled in accordance will the national water resource
strategy.
(4) A national water resource strategy-
(f/) may he established in a phased and progrc wive tmanner and in separate
components over time: and 40
(h) must be reviewed at intervals of not more than five years.
(5) Before establishing a national water resource str: .tegy or any component of that
strategy in terms of subsection ( I ), the Minister nlust-
(CI) publish a notice in the G(ixtte-
(i) setting out a summary of the proposed strategy or the component in 45
question;
(ii) stating the address where the proposed strategy or the component in
question is available for inspection: and
(iii) inviting written c~~nlnlents to be submitt :d on the proposed strategy or
the component in question, specifying a n address to which and a date 50
before which comments must be subn- itted, which date may not be
earlier than 90 days after publication of be notice:
(h) consider what further steps. if any. are appropt itite to bring tbe contents of the
notice to the attention of interested persons. md take those steps which the
Minister considers to be appropriate; and 55
YJ N() 118? GOVI RNMf;NT GAZETTE, 26 AIJG(IST 19Y8
(<) consider all comments received on or before the date specified in paragraph
(~i)( iii),
6. ( I ) The national water resource strategy must, SUI ject to section 5(4)(a)
((l) set out the strategies, objective~: plans. gu delines and procedures of the 5
Minister and institutional arrangements rc Iating to the protection, use,
development, conservation, management a id control of water resources
within the framework of existing relevant ~overnment policy in order to
achieve
(i) the purpose of this Act; and I ()
(ii) any compulsory national standards pres :ribed under section 9(I) of the
Water Services Act, 1997 (Act No. 108 of 1997);
(b) provide for at least
(i) the requirements of the Reserve and idt ntify, where appropriate, water
resources from which particular require nents must be met; 15
(ii) international rights and obligations;
(iii) actions to be taken to meet projected fu ure water needs; and
(iv) water use of strategic importance:
(c) establish water management areas and deterr line their bounciaries;
(d) contain estimates of present and future wate~ requirements; 20
(e) state the total quantity of water available with n each water management area;
(t) state water management area surpluses or de icits;
(g) provide for inter-catchment water trmsfers I letween surplus water manage-
ment areas rrnd deficit water management art as;
(/1) set out principles relating to water conservat on and water demand manage- 25
ment:
(i) state the objectives in respect of water qua ity to be achieved through the
classification system for water resources pro ided for in this Act:
(j) contain objectives for the establishment of institutions to undertake water
resource management; 30
(k) determine the inter-relationship between nstitutions involved in water
resource management: and
(1) promote the management of catchments with n a water management area in a
holistic and integrated manner.
(2) In determining a water management area in [arms of subsection ( I )(c), the 35
Minister must take into account
(a) watercourse catchment boundaries;
(/2) social and economic development patterns;
(c) efficiency considerations; and
(d) communal interests within the area in questil m. 40
catchment management strategy must set principles. ~or allocating water to existing
and prospective users, taking into account all matter~ relevant to the protection, use,
development, conservation, management and control of water resources.
11. The Minister and the catchrnent management ag mcy concerned must give effect
toanycatchment rnanagernent strateg ymtablish cduncerth isPart when exercisin,g any
poweror performinganydoty ir]terrlls(JftllisAct.
CHAPTER 3
Part I provides for the>r.st stage in theprotection p) ocess, which is the development
by the Minister of a system to classify the nation i water resources. The system
provides guidelines and procedures for determin~ ug different ciasses of water 40
resources.
12. ( I ) As soon as is reasonably practicable. the Min ster must prescribe a syskrn for
~[:lssifying water resources.
(2) The systcm Ior classifying water rewmrccs may 45
(~i) cstahlish guidelines and procedures for dc[er nining dillerent classes of water
resources;
(h) in respect O( each class of mater rc.source-
(i) establish pr(xxxlures for determining th ~ Reserve:
( ii) establish procedures which are dcsigc 2 d to satisfy the water quali[y 50
requirements (~t uater users as far as is reas(mhly possible. without
signi(icltntly altering the natural wate quality characteristics of the
rcw)urce:
28 N(). 191X2 GO\ ERNMENT GAZETTE. 26 AUGUST 19%?
(iii) set out water uses for instream or land based activities which activities
must be regulated or prohibited in ord x to protect the water resource;
and
(c) provide for such other matters relating to t \e protection, use, development,
conservation, management tind control of vater resources, as the Minister 5
considers necessary,
Under Part 2 the Minister is required to use the cl~ssijication system established in
Part I to determine the class and resource quality b bjectives of all or part of water
resources considered to be significant. The purpose e f the resource quality objectives 1 ()
is to establish clear goals relating to the quality of i he relevant water resources. In
determining resource quali~ objectives a balance mu vt be sought between the need to
protect and sustain water resources on the one hand, and the need to develop and use
them on the other. Provision is made for preliminary determinations of the class and
resource quality objectives of water resources before the formal classl~cation system 15
is established. Once the class of a water resource am 1 the resource quality objectives
have been determined they are binding on all au horities and institutions when
exercising any power or performing any duty under this Act.
13. ( I ) As soon as reasonably pmcticable after the dinister has prescribed a system 20
for classifying water resources the Minister must, subj:ct to subsection (4), by notice in
the Gc{zei[e, determine for all or part of every signific mt water resource-
(a) a class in accordance with the prescribed Cli ssifrcation system; and
(b) resource quality objectives based on the class determined in terms of
paragraph (a). 25
(2) A notice in terms of subsection (I) must state th t geographical area in respect of
which the resource quality objectives will apply, the requirements for achieving the
objectives, and the dates from which the objectives w 11 apply.
(3) The objectives determined in terms of subsecti an ( 1 ) may relate t(J
(a) the Reserve; 30
(b) the instream flow;
(c) the water level;
(d) the presence and concentration of particular substances in the water;
(e) the characteristics and quality of the water resource and the instream and
riparian habitat; 35
(f) the characteristics and distribution of aquati(: biota;
(g) the regulation or prohibition of instream or and-based activities which may
affect the quantity of water in or quality of t le water resource; and
(h) any other characteristic,
of the water resource in question. 40
(4) Before determining a class or the resource quality objectives in terms of
subsection ( I), the Minister must in respect of each w [ter resource
(a) publish a notice in the Gaze?fe
(i) setting out
(au) the proposed class; 45
(bb) the proposed resource quality objectives;
(cc) the geographical area in respect of which the objectives will apply;
(old) the dates from which specific obje :tives will apply; and
(ee) the requirements for complying w th the objectives; and
(ii) inviting written comments to be subnitted on the proposed class or 50
10 N() l~Jl X2 (io\l;RNNIENT( i/\ZETTE.26A [l G[l ST 199X
proposed rewwrcc quality objectives (a; the case may be). specifying an
address to which and a dale belore .vhich the comments are to be
sublnitkxi. which da(c may m][ be earlie than 60 ciirys after publicoti{m of
the notice:
(/1) consider what further steps. ii any, are apprmriate to bring the contents 01 the 5
notice to the attentitm 01 interested persnns, find take thrrsc steps which (I1c
Minister considers to be appropriate; and
(() consider all comments received on or befor ? the date specilied in paragraph
(a)(ii)
15. The Minister, the Direc((lr-Gcncrai. an orgun ( f state ami a wa(cr management
instituti(m, when exercising any power or performing: ny duty in terms of this Act, must 20
give effect to any determinati(m of a class of a water esource and the resource quality
objectives as determined in terms of this Part and any requirements for complying with
the resource quality objectives.
Part 3 deals with the Reserve, which consists of tw( parts the basic human needs 25
reserve and the ecological reserve. The basic llama, I needs reserve provides ,for the
essential needs of individuals served by the water re ;oarce in question and inciades
water for drinking, for food preparation and for pi rsonal hygiene. The ecological
reserve relates to the water required to protect the ~ Iquatic ecosystems of the water
resource. The Reserve refer.r to both the quantity md quality of the water in the 30
resource, and will vary depending on the class (~ the resource. The Minister is
required to determine the Reserve. for all or part of any sigttijicant water resource. (f
a resource has not yet been classified, a preliminary a etertnination of the Reserve tnay
be tnade and later superseded by a new one. Once he Reserve is determined for a
water resource it is binding in the same way as tlu cIass and the resource quality 35
objectives.
Determination of Reserve
(c) consider all comments received on or before the date specified in paragraph
(a)(ii).
17. ( I ) Until a system for classifying water resources has been prescribed or a class of
a water resource has been determined, the Minister 5
(o) may, for all or part of a water resource; and
(b) must, before authorizing the use of water unjler section 22(5),
make a preliminary determination of the Reserve.
(2) A determination in terms of section 16(l) supe sedes a preliminary determina-
tion. 10
18. The Minister, the Director-General, an organ of state and a water management
institution, must give etfect to the Reserve as determ ned in terms of this Part when
exercising any power or performing any duty in terms of this Act.
Part 4 deals with pollution prevention, and in ~ !articular the situation where
pollution of a water resource occurs or might occur 1 !s a result of activities on land.
The person who owns, controls, occupies or uses the land in question is responsible
for taking measures to prevent pollution of water reso, wces. If these measures are not
taken, the catchment management agency concerted may itself do whatever is 20
necessary to prevent the pollution or to remedy tts e~ects, and to recover all
reasonable costs frotn the persons responsible for the pollution.
19. ( I ) An owner of land, a person in control of land I ~r a person who occupies or uses
the land on which 25
(o) any activity or process is or was performed t r undertaken; or
(b) any other situation exis(s,
which causes, has caused or is likely to cause pollution I jf a water resource, must take all
reasonable measures to prevent any such pollution from occurring, continuing or
recurring. 30
(2) The measures referred to in subsection ( I ) may Include measures to
(a) cease, modify or control any act or process c ausing the pollution;
(b) comply with any prescribed waste standard t ,r management practice;
(c) contain or prevent the movement of pollutan :s;
(d) eliminate any source of the pollution; 35
(e) remedy the effects of the pollution; and
w remedy tbe effects of any disturbance to the )ed and banks of a watercourse.
(3) A catchment management agency may direct a ly person who fails to take the
measures required under subsection ( 1 ) tc+
(a) commence taking specific measures before a given date; 40
(b) diligently continue with those measures; and
(c) complete them before a given date.
(4) Should a person fail to comply, or comply inadequately with a directive given
under subsection (3), the catchment management ag mcy may take the measures it
considers necessary to remedy the situation. 45
(5) Subject to subsection (6), a catchment rnanagem mt agency may recover all costs
incurred as a result of it acting under subsection (4) jointly and severally from the
following persons:
(a) Any person who is or was responsible fot or who directly or indirectly
contributed to, the pollution or the potential )ollution; 50
34 N(I. 191X? (WV ERNMENT GAZETTE 26 AU(i(lST 1998
(b) the owner d [he land aI the time when tt e pollution or the potential tot
pollution occurred. or that owners successo--in-title:
([) the perwm in control 01 the land or any pers( n who hfis a right to use the land
lit the time when
(i) the activity or the process is or was pm formed or undertaken; or 5
(Ii ) the situation cwme about: or
(d) any person who negligently failed ((~ preven:
(i) the activity or the process being pcrlor ned or undcrtuken: or
(ii) the situation from coming about.
(6) The catchmcnt management agency may in rcsp ct of the recovery of costs under 10
subsection (5). clailn from ;my other person who, i I the opinion 01 the catchnwnt
mwl; lgetncnt agency, benetitted from the me;lsures um crtaken under subsection (~). to
the extent (JI such twnc~it.
(7) The costs claimed under subsection (5) must I m tre:rmnatde and may include.
with(ml being Iimitcd to. Iatx)ur. administrative and ()! erlwad costs. 15
(8) If more than one person is liable in terms o subsection (5). the catchmcnt
mana:cment agency must, at the request of any of th( se persoms. and otter giving the
other-s an opportunity to be heard, apportion the liability, but such apportionment does
not rc]icve ~lny 01 [hem ot IIwir ;oint and several Ii;lhilit for the full amoLInl of the costs.
Part .5 deals with pollution of water resources fol owing an emergency incident,
such as an accident involving the spilling of a harmul substance that finds or may
jind its way into a water resource. The responsibility j v remedying the situation rests
with tite person responsible for the incident or the s tbstance involved. If there is a
failure to act, the relevant catchment management (tgency may take the necessary 25
steps and recover the costs from every responsible pe won.
20. ( I ) In this section incident inc]udes any il, eident or accident in which a
substance-
(CI) pollutes or has the potential to pollute a wa(( r resource: or 30
(b) has, ~w is likely 10 have. a detrimental etlect on a water resource.
(2) In this secti(m. responsible pwwm includes a ly person who-
(~1) is responsible Ior the incident:
(b) owns the substance involved in the incident: or
(r) w:is in control of the substimce involved in the incident at the time of the 35
incident
(3) The [responsible person. any other pers(m invol led in the incident or any other
person with knowledge of the incident must, m soon as reasonably practicable alter
obt;iinirrg knowlecige of the incident. report to-
(a) the Departtnent: 40
(h) the South African Police Service or the rele\ nnt fire department: or
({) the relevant catchment management agency
(4) A responsible person mtlst-
(a) take all reasonable measures to contain at d minimise the ef}ccts of lhc
incident: 45
(/?) undertake C[eilll-Llp procedures:
(() remedy the ctfccts t}f the incident: and
(d) (iike such measures as the catchmenl managcinent agency may either verbally
or in writing direct tvi(hin the time specilied by such institution.
(5) A verbal dircctivc must be confirmed in writing within 14 days, failing which it 50
will be deemed to have been withdrawn.
(6) Should-
\ct so. 36.1998 N \TloNAL W,\TER ,4 CT, II)YX
(a) the responsible person fail to comply. or Inadequately comply with a directive:
or
(b) it not be possible to give [he directive to [he responsible person timeously.
the catchmertt management agency may tuke [he meosures it considers necessury to
(i) contain and minimise the effects of the incident: 5
(ii) undertake clean-up procedures: wld
(iii ) remedy the effects of the incident.
(7) The catchment management agency may recover all reasonable costs incurred by
it from every responsible person jointly and severail~.
(8) The costs claimed under subsection (7) may Include. withput being limited to. I ()
Iabour. administration and overhead costs.
(9) If more than one person is liable in terms of subsection (7). the catchment
management agency must. at the request of any of those persons. and after giving the
others an opportunity to be heard. apportion the liability. but such apportionment does
not relieve any of them of their joint and several liability for the full amount of the costs. 15
CHAPTER 4
USE OF WATER
As this Act is founded on the principle that ,Vational Government has overall
responsibility for and aathonty over water resource management, inc[uding the
equitable allocation and beneficial use of water in the public interest, a person can 20
only be entitled to use water if the use is permissible under the .4ct. This Chapter is
therefore of central signi)cance to the Act, as it lays the basis for reguiahng water use.
The various types of licensed and unlicensed entitlements to use water are dealt with
in detail.
This Part sets out general principles for regulating water use. Water use is dejined
broadly, and includes taking and storing water, activities which reduce stream jiow,
waste discharges and disposals, controlled achvities (activifies which impact
detrimentally on a water resource), altering a watercourse, removing water found
underground for certain purposes, and recreation. In general a water use must be Xl
licensed unless it is listed in Schedule I, is an existing lawful use, is permissible under
a general authorisation, or if a responsible authon~ waives the need for a licence.
The Minister may limit the amount of water which a responsible authori~ may
allocate. In making regulations the Minister may differentiate between different water
resources, classes of water resources and geographical areas. 35
Water use
(9) The Water Tribunal has jurisdiction to determine liability for compensation and
the amount of compensation payable in terms of this section.
( 10) After the Water Tribunal has decided that compensation is payable and
determined the amount of compensation. the responsible authority may enter into
negotiations with the claimant and. within 30 days after the decision ot the Water 5
Tribunal, offer an allocation ot wuter instead ot compensation.
z3. ( I ) Subject to the national water resource strategy the Minister may determine the
quantity of water in respect of which a responsible authority may issue a general 10
authorisation and a Iicence from water resources in its water management area.
(2) Until a national water resource strategy has been established, the Minister may
make a preliminary determination of the quantity of water in respect of which a
responsible authority may issue a general authorisation and Iicence.
(3) A preliminary dete~inatlon must be replaced by a determination under 15
subsection ( 1 ) once the national water resource strategy has been established.
(4) A responsible authority must comply with any determination made under
subsection ( 1 ) or (2).
(5) In making a dete~ination under subsections ( 1 ) and (2) the Minister must take
account of the water availabie in the resource. ~o
24. A licence may be granted to use water found underground on land not owned by
the applicant if the owner of the land consents or if there is good reason to do so.
25. (1) A water management institution may. at the request of a person authorised to 25
use water for irrigation under this Act. allow that person on a temporary basis and on
such conditions as the water management institution may determine. to use some or ail
of that water for a different purpose, or to allow the use of some or all of that water on
another property in the same vicinity for the same or a similar purpose.
(2) A person holding an entitlement to use water from a water resource in respect of 30
any land may surrender that entitlement or part of that entitlement
(a) in order to facilitate a particul~ Iicence application under section 41 for the
use of water from the same resource in respect of other land: and
(b) on condition that the surrender only becomes effective if and when such
application is granted. 35
(3) The annual report of a water management institution or a responsible authority. as
the case may be, must, in addition to any other information required under this Act.
contain details in respect of every permission granted under subsection ( 1 ) or every
application granted under subsection (2).
any water-work, where it is necessary (Jr Liesil able to monitor tiny water use or
It) protect u waler res(mrce:
(/) requiring qualifications for and registration lt persons aulh(wiscd ttl design.
construct. insttill, operate and m:linlain any v aterwork, in order to protect the
public and to safeguard human life and pro~~rty; 5
(,~) regulating or prohibiting any activity in ord r to protect a water resource or
instream or riparian habitat;
(h) prescribing waste st;inclards which specify tt e quantity. quality and tempera-
ture 01 waste which may be discharged or de msited in(o or allowed [o enter a
water resource; 1 ()
(i) prescribing the outcome or etfect which mu J( be achieved through manage-
ment practices tor the treatment of waste, o any elms of waste, before it is
discharged or deposited into or allowed to e )ter a tvater resource:
(j) requiring that waste discharged or deposited into or allowed to enter a water
resource be monitored and amdysed. and prescribing methods for such 15
monitoring and analysis:
(k) prescribing procedural requirements for lice Ice applications;
(/) relating to transactions in respect of aurhoris; tions to use water, including but
not limited to-
(i) the circumstances under which a transa :tion may be permitted: Z()
(ii) the conditions subject to which a tramsi ction may take place; and
(iii) the procedure to deal with a transaction;
(ni) prescribing methods for making a volumetr [c determination of uater to be
~lscribed to a stream flow reduction acti\ Ity for purposes of water use
allocation and the imposition of charges: 15
(n) prescribirlg procedures ti)r the allocation of w .iter by means of public tender or
auction: and
(o) prescribing-
(i) procedures for obtaining: and
(ii ) the rtquircd contents of. 30
assessments ot (he likely effect which any p[ .)poscd licence may have on the
qu:l)ity of the w~lt~r res(~ur~c in qL1estion.
(~) Regulations made Under sLlbsection ( I ) Inay -
(a) diflkrentia(e between different water resourc:s and dit~erent classes ot wuter
res(wrces: 35
(/~) Lfillerentiate between di~erent geographical ireas: and
(() create oflences and prescribe penalties.
(3) Regulations made under subsection ( I )(h), (i) ald (,j) may contain-
(~{) general provisions applicable to all waste; at d
(b) specific provisions applicable to waste with ,pecitic chflracteristics. 40
(4) When making regulations, the Minister must take into account all relevant
collsicler:tti(~tls, including the need to-
({/) promote the economic and sustainable use o water:
(/~) conserve and protect water resources or. inst earn and riparian habitat:
(() prevent wasteful water me:
(d) facilitate the management of water use and \ waterworks:
(c) facilitate the monitoring of water use and w: ter resources: and
(f) facilitate the imposition and recovery of cha ges.
This Part dea[s with matters reievant to all genet al authorisations and licenees
issued ander the Act. It gliides responsible alltho -ities in tit e exercise of their
discretion to issue and to attach conditions to general authorisations and [icences. It
also sets out the essential features of licences, such as efiective periods, purposes and
places for which they may be issued, and the nature of onditions that maybe attached 55
to thcvn. The granting of a Iicence does not implv any guarantee regarding the
availability or qualilv of water which it covers.
44 N(J. 191X2 (;OV ERNMENT GAZE~EL 26 AUGUST 1998
(i) specifying mawrgement practices and g neral requirements for any writer
use, including water conser\a(icm mea! ures;
(ii) requiring the monitoring and analysis of and reporting on every water LISC
and imposing a duty to measure aml record aspects of water use.
specifying mcmuring and recording de /ices to be used: 5
(iii) requiring the preparation and apprrmu I of and adherence to, a water
management plan:
(iv) requiring the paytnent of chw-ges for wa er use as provided ft)r in Chapter
5;
(v) requiring the licensee to provide or m Ike water available to a person 1()
specified in the Iicence: anti
(vi) in the case of a general authorisation. requiring the registration 01 the
water use with the responsible au[bority .md the pay]nent of u registration
lee as a pre-conditirm of that use;
([) relating to return flow and discharge or disp ml of waste, by
(i) specifying a water resource to which it t lust bc returned or ottwr manner
in which it must be disposed OL
(ii) specifying permissible levels for some ( r all of its chemical and physical
colnponents:
(iii) specifying treatment to which it mitst be subjected. bclorc it is 20
discharged: and
(iv) specifying the volume which tmry be r~ turned:
(d) in the case of a controlld activi(y ---
(i) specifying the waste treatment. pollution control and rnonitoring
equipment to he instollecl. maintained a d operated: and 25
(ii) specifying the management practices to be followed to prevent the
pollution of any water resource;
(c) in the case of taking or storage of water-
(i) setting out the spccitic quantity of water ~r percentage of flow which may
be taken: 30
(ii) setting out the rate of abstraction:
(iii) specifying the method of construction t ,f a borehole and [he method of
abstraction from the boreholc:
(iv) specifying the place from where water nay be taken:
(v) specifying the times when woter may b: taken; 35
(vi) identifying or limiting the area of land [ n which any water ttiken from a
resource may be used:
(vii) limiting the quantity of water which m: y be stored;
(viii) specifying locations where water may t e stored: tind
(ix) requiring the licensee to become a mer Ibcr of a water user association 40
before water may be taken;
in the case of a stream flow reduction activit Y
(i) specifying practices to be followed to imit stream flow reduction and
other detrimental impacts on the water esource: and
(ii) setting or prescribing a method for dete mining the extent of the stream 45
flow reduction caused by the authorised activity;
which are necessary or desirable to achic\e tile purpose for which the licence
W:M issued;
which are rwcessary or desirable to ensure cc mpliance with the provisions of
this Act: and 50
in tbe case of a liccncc-
(i) specifying times when water may or m: y not be used;
(ii ) containing provisions for its termination if an authorised use of water is
not implemented (u not Iully implcmen ed;
( iii) dcsigmrting water for future or continge It use: or 55
(i\) which have I-mm agreed to by [be licen~ ee.
(2) If a licensee has agreed (o pay compensation to another person in !erms of any
arran~emcnt to use \vater. the responsible authori(y n ay make the obligation to puy
conlpens:ltion a condition 01 the Iicence.
48 N(). 19182 (WV] RNMENT GAZETTE. 26 AUG[JST 1998
Security by applicant
30. ( 1 ) A responsible authority may, if it is necessar for the protection of the water
resource or property, require the applicant to give securi y in respect of any obligation or
potential obligation arising from a Iicence to be issued under this Act.
(2) The security referred to in subsection ( 1 ) may in :Iude any of the following: 5
(i) A letter of credit from a bank;
(ii) a surety or a bank guarantee;
(iii) a bond;
(iv) an insurance policy; or
(v) any other appropriate form of security. 1 ()
(3) The responsible authority must determine the t:pe, extent and duration of any
security required.
(4) The duration of the security may extend beyond the time period specified in the
Iicence in question.
(5) If the responsible authority requires security in th e form of an insurance policy, it 15
mtiy require that it be jointly insured under or be a her eficiary of the insurance policy
and where appropriate, the responsible authority m ]st be regarded as having an
insurable interest in the subject matter of the insurance policy.
(6) A person may apply in writing to the responsible.: authority to have any security
given by that person in terms of this section amended c r discharged at any time, which 20
application may not be unreasonably refused.
31. The issue of a Iicence to use water does not imp y a guarantee relating to
(a) the statistical probability of supply;
(b) the availability of water; or 25
(c) the quality of water.
This Part permits the continuation under certain L onditions of an existing water
use derzved from a law repealed by this Act. An exist ng lawful water use, with any
conditions attached, is recognised but may continue , mly to the extent that it is not 30
limited, prohibited or terminated by this Act. No licen :e is required to continue with
an existing lawful water use until a responsible autho ity requires a person claiming
such an entitlement to apply for a licence. If a licence is issued it becomes the source
of authonty for the water use. If a licence is not yranted the use is no longer
permissible. 35
33. ( 1 ) A person may apply to a responsible ~uthonty to have a water use which is not
one contemplated in section 32( 1)(b)(i). (ii) or (iii}. decltwed to be an existing lawful
water use.
(2) A responsible authority moy. on its own initiative. declare a water use which is not 5
one contemplated in section 32( 1 )(b)(i), (ii) or (iii). to be an existing lawful water use.
(3) A responsible authority mtiy only make d declaration under subsections(l) ond (2)
if it is satistied that the water use
(a) took place more than two years before the date of commencement of this Act
and wx discontinued for yood reason: clr [()
(b) had not yet token place at any time before the date of commencement of this
Act but
(i) would ha~e been lawful had it so taken place: and
(ii) steps towards effecting the use had been taken in good faith before the
date of commencement of this Act. 15
(4) Section 41 applies to m application in terms of this section as if the application
had been made in terms of that section.
35. ( 1 ) The responsible authority may. in order to verify the lawfulness or extent of an
existing water use, by written notice require any person claiming an entitlement to that
water use to apply for a verification of that use.
(~) A notice under subsection ( 1 ) must_ 30
(a) have a suitable application form annexed to it:
(b) specify a dtite before which the application must be submitted;
(c) inform the person concerned that any entitlement to continue with the water
use may lapse if an application is not made on or before the specified date; and
(d) be delivered personally or sent by registered mail to the person concerned. 35
(3) A responsible authority
(a) m~y require the applicant. at the applicants expense. to obtain and provide it
with other information, in addition to the information contained in the
application:
(b) may conduct its own investigation into the veracity and the lawfulness of the 40
water use in question;
(c) may invite written comments from any person who has an interest in the
matter; and
(d) must afford the applicant an opportunity to make representations on any
aspect of the application. 45
(4) A responsible authority may determine the extent and lawfulness of a water use
pursuant to an application under this section, and such determination limits the extent of
any existing lawful water use contemplated in section 32(1).
(5) No person who has been required to tipply for verification under subsection(1) in
respect of an existing lawful water use may exercise that water use 50
(a) after the closing date specified in the notice, if that person has not applied for
verification; or
Pm-t 4: Stream jlo w reductiou activities .5
Tilis Part uliows the Miaister, ajter public consli[tatian, to regulate land-based
activities which reduce stream jlo w, by declaring such activities to be streant jio w
reductiou activities. I})ltether or not an activity is declared ta be a stream jlo w
r(>duction activity depends on various jilctors, such as the exteut of stream jlo w
reduction, its duration, and its itnpact on any relevant water resource and on other I ()
water users. The control of jorestry jbr its impact ott water resources, ctirreutl}
exercised in tertns oj the Forest Act, is now exercised under this Part.
(/))
(()
(~i)( ii).
(S) Every notice published in terms 01 subsection (4)(a) must conl~in :1 sclmdulc in
which Inust be Iislcd a l l s(rc:II]) Ilov lrcduuli(m uu[ivitim set oul i n suhscclion ( I ) :11111 45
(how which h:l\c, up to the da[c t)t the m)ticc, been declared [() be stwwn I1OW rcduc[ion
:Ic[ivilics under subscclit)ll (2).
This Part allo ns the Minister to regulate activities having a altritnental impact ou
w~aterresoltrces b.ydeci{trit~g t)tettt to be controlle dactivities. Foarsuc hactivities- 50
irrigation using waste or water contaia ing waste from certain sources, modijicatiou of
attnosphericp recipitation, [llteritlg tllefl[)w regittle(~fa water resource as aresult (!f
54 No. 19182 GOVERNMENT GAZETTE, 26 AUGUST 1998
power generation, and aquifer recharge using waste or water containing waste are
identified in the Act as controlled activities. Provision is made for the Minister to
declare olher controlled activities as the need arises, but in these cases public
consultation is required. Following the identification or declaration of a controlled
activity un authorisation for that particular category of activity is required under this 5
Act.
Controlled activity
38. ( 1 ) The Minister may, by notice in the Gazette, in general or specifically, declare
an iictivity to be a controlled activity. 20
(2) Before declaring tin activity to be a controlled activity the Minister must be
satisfied that the activity in question is likely [u impact detrimentally on a wmer
resource.
(3) Before making a declaration under subsection ( 1 ) the Minister
(u) must publish a notice in the Gaze[re 25
(i) setting out the activity or category of activities proposed to be deciared;
and
(ii) inviting written comments to be submitted on the proposed decl~iration.
specifying an address to which and a date before which comments are to
be submitted, which dote may not be earlier than 60 days after 30
publication of the no[ice; and
(b) muy, in the case of a specific activity on a specific site, make the notice known
by delivering or sending a copy to the owner or the person in control of the site
in question, and to every organ of state which, and every person who, has an
interest in the matter; 35
(c) must consider what further steps, if any, are appropriate to bring the contents
of the notice to the attention of interested persons, and take those steps which
the Minister considers to be appropriate; and
(d) must consider all comments received on or before the date specified in
paragraph. 40
(4) Every notice published in terms of subsection ( I ) mus[ conttiio u schedule on
which must be listed all controlled activities set out in section 37( I )(a) to (d) and those
which have, up to the date of the notice, been declared to be controlled activities under
subsection ( l).
This Part sets out the procedures which apply in all cases where a Iicence is
requiredto use water, hut where nogeueral invitation toapply.for liceuces has been
issued underPart 8. Water users who are uot requiredto license their use, but who 30
wish to convert the use to licensed use, may also use the procedure set out iu this Part,
but the respousib[e authority tnay deciiue to graut a liceuce wheu the app!icatlt is
entitled to the use of water under au existing lawful use or by a general authorisation.
[u coasideriug an application a respousib[e authority may require a[iditionu[
iuftmnatiotl from the applicant, aud may also require the applicaut to uudertake an 35
en virontueutal or other assess tnent, which asses stnents may be subject to independent
review.
4(L ( I ) A person who is required tw wishes to obt:tin a Iicence (o use water must apply
lo IIw rclcv:lnl respt~nsiblc :Iuthorily for d Iicence. 40
(~) Where &i person htLs Ill;lde m tippliCUllOtl for an authol-isa[ion to LISe water U n d e r
wl~~thcr Act, and [hat applictlt ion hus not been finui ised when this Act takes etfect. [he
:Ipplicii[i(m must be rcg:mted as being an application for a water use under this Ac[.
( 3 ) A rcsp~msib[c :mth(wity n~ay charge :t rcw)nabie tec for processing ii Iiccncc
:Ippllc:ition, whluh II IiIy b~ \viIIvcd In d~s~>rvlng CM L>S. 45
(4) A rcspfm\ible uutborily mtiy decline to consider a licence upptica[i[m lor IIw uw
01 \v:l[cr 10 ~hich tbc app!icmt is alredy cntilled by w~y t)fan existing !:IwfLIl water usc
o r umtcr d genemt au[horisa[ion.
58 N(). 19182 GOVI :RNMENT (; AZEtTE, 26 AUGUST 1998
42. After a responsible authority has reached a deci iion on a licence application, it
must promptly
(u) notify the applicant and any person who has ~bjected to the application; and
(b) at the request of any person contemplated in paragraph (u), give written
reasons for its decision. 45
43. ( I ) II it is desiroble that water use in rcspec( otonc or more water resources within
a specilic gcograpbic area bc licensecl-
((/) l();lchicve af;iirtlli()c:lticJn (~ fw:lter fr()tll:l w:lterres(>Llrcc itlacc(~rdilrlce with 25
secti(m 45
(i) which i\ Ltlldcr w:llcrstrcss:t)r
( i i ) whenil isneccssar ytorevie wprevailini w:lteruse t(~:lchie\ee c]uityitl
allocations;
(h) t{)pr(ltTl(Jte betlefici:ll tlsef)l \v:ller inlhepllb ic interest; 30
(() lof:ici]it;llcef~iciellt Ill:irl:lgeme[lt ofthcw:ite resol[rce; or
(d) topr(~tcct water resource quality,
Itw rcsp(lllsihie tlllthority may issue anolice requiring p?rsonstoappiy Iorliccnces for
(me or more types of wate ruse contemplated in section 21.
(2) A notice in terms of subsection ( I ) must- 35
(</) identify thew:lterr esollrcc: lnci[llew[itcruse inqutstion:
(h) s[ate\vherc liccllce ~tpplic:lti(>tl fornlsl n;iybeobt:lined;
[() st;ltettle:lddress t()wtlich licellce applic:lti()n mllstbes ubtllitted:
(d) state theclosing date lorlicence:tpplications:
(c) st:~[ethe:lpplic[lti(~ll Ice: and 40
(,/) c(mtain such other inlormati(m as the re;ponsihk a u t h o r i t y c o n s i d e r s
appr(ylriale.
(3) Anotice interms ofsubsection (l)mustbenlacle :nownbypuhlishin gthenotice
in the (;a:cI/e at least 60 days before the closing cate. giving suitable notice in
newspapers and other media and taking other steps to bring the notice to the attention of 45
inlcrcsttxl persons.
(4) Section 4 I applies to an tipplication in terms of t Iis section as it the application
haLI been made in terms of that sccti(m.
Late applications
44. A responsible authority may, for good reason, c andone a late application and 50
charge a reasonable additional fee for processing the Iat t application.
46. ( 1 ) After considering all objections received on the proposed allocation schedule
on or before the date specified in the notice contel nplated in section 45(4), the
responsible authority must prepare a preliminary allo+:ation schedule and publish a 35
notice in the Gazette
([t) containing a copy of the preliminary allot ~tion schedule, or stating the
address where it may be inspected; and
(b) stating that an appeal in respect of any \ msuccessful objection to the
preliminary allocation schedule may be made n accordance with Chapter 15. 40
(2) If an appeal under subsection ( 1 )(b) succeeds. I he responsible authority must
amend the preliminary allocation schedule as directed k y the Water Tribunal.
Part 9: Kevie w and renewal of licences, and atneti dtnent and substitution of
conditions oj[icences
ihis Part deals u'itlttlle review atldrejtewal t~flice tce.v, altdtlte atnertdi?tettt atld
.snbstitutian of their conditions. Review of a Iicence ~s by the relevant re,sprtnsibie
authority, at periods stipulated in the licence as part o f a general review process.
A review of a licence may tead to the amendment m substitution qf its conditions,
but only (f certain requirements are satis@ed. If the unendment or substitution qf
conditions severely prejudices the econotnic viability (q any undertaking in respect of
wh ieh the licence was issued there is a claim f(w compe lsation. Minor amendments to
iicences @r instance, to correct clerical mistakes, or hanges in format), and ti~o.se
agreed to b.v the licensee may lte made outside of the review process. In addition, a
licensee may apply to the responsible authority for th ? renewal or amendment of a
licence before it expires. In considering such appricat tans the responsible authority
must again consider the matters dealt with in the iniiial application, and there are
limitations to the new cottditians to which the Iicence $wa.v be subjected.
49. ( 1 ) A responsible authority may review a lic~ nce only at the time periods
stipulated fr~r [hat purpose in the Iicencc.
(2) on revir\ving a liccncc, a resptmsihlc :Iuth(wity n ay amend any condition of the
liccnce, other than the period thercol. il
([{ ) it is necessary or desirable to prevent deterior ttion or further deteriorate ion of 35
the quality of the water resource;
(h) there is insutlicient water in the water resource to accommodate all wrthoriseci
water uses after all[)wing tor IIW Reserve and international obligations; or
(c) it is necessary or desirable to accomrnocht ? demands brought atxmt by
changes in s(}ci(~-ecoll{)tllic circumstances+ ar d it is in the public interest to 40
meet those ciernands.
(3) An amendtnent contemplated in subsection (2) ma: only be made if the c(~nditions
[JI other licences Ior similar water use from the same watv - resource in the same \icinit y.
all as deter[nined by the responsible authority. have crlsc been amended in an equitable
manner through a geneml review process. 45
(4) It an anlendmen[ of a Iicence condition on n view severely prejudices Ihe
ectm(]mic viability of any urrdertakitlg in respect of wh ch the Iicence was issued, the
provisions 0! section 22(6) t(} ( 10) apply.
(5) A responsible authority must a[l{)rd the licensee an opportunity to be heard before
alncn ding any Iicence condition on review. 50
oh N(1. 101X2 GOVE RN KIENT G.AZETTE. 26 AUGUST 1998
51. ( 1 ) A re.sp(msible authority may, after giving all parties an opportunity to be heard,
adjudicate upon convicting claims between a ficensee and a successor-in-title. ol-
between ditierent successors-in-title, in respect of claims for the timendment or
substitution of licerwe conditions.
(2) A successor-in-title of any person to whom a ficence to use water has been 25
issued
(a) may, subject to the conditions of the relevant Iicence and paragraph (b),
continue with the water use; and
(b) must promptly intorm the responsible authority of the succession, for the
substitution of the mrme of the licensee, for the remainder of the term. 30
52. ( 1 ) A licensee may. before the expiry date of a Iicence, appfy to the responsible
authority k)r [be rencwat or amendment of the ficence.
(2) Unless an application for the renewal or amendment of a Iicence is nude in terms
of section 50, it rnusl 35
(a) be made in such torn], contain such information tind be accompanied by such
processing fee as may be determined by the responsible authority; and
(/)) be dealt with according to the procedure as set out in section 41.
(3) In considering an application to amend or rerww a licence, tfw responsible
au[fmri(y must h:lve regard (() (Iw same mat(ers which it wus required to consider when 40
deciding the ioitiaf application for that Iicxnce.
(4) A responsible uuthority may mend any condition of a Iicence by irgreement \vitb
Ilw Iicemsee.
Rectification of contravention
54. ( 1 ) Subject to subsections (3) and (4), a responsible authority may by notice to any
person entitled to use water under this Act suspend or withdraw the entitlement if the 20
person fails
(a) to comply with any condition of the entitlement;
(b) to comply with this Act; or
(c) to pay a churge which is payable in terms of Chapter 5.
(2) An entitlement may be suspended under subsection ( 1 ) 25
(a) for the period specified in the notice of suspension; or
(b) until the responsible authority is satisfied that the person concerned has
rectitied the failure which led to the suspension.
(3) A responsible authority may only suspend or withdraw an entitlement under
subsection ( 1 ) if the responsible authority has directed the person concerned to take 30
specified steps to rectify the failure within a specified period, and the person concerned
has failed to do so to the satisfaction of the responsible authority.
(4) The person concerned must be given an opportunity to make representations,
within a retisonable period, on any proposed suspension or withdrawal of an entitlement
to use water. 35
(5) A responsible authority may, for good reason, reinstate an entitlement withdrawn
under subsection ( I).
Surrender of Iicence
55. ( I ) A licensee may otl-er to surrender any Iicence issued to that licensee under this
Chitpter, whereupon, unless there is good reason not to do so, the responsible authority 40
must accept the surrender und cancel the licence.
(~) A responsible ~uthorl[y may refund to a ]icensee any charge or part of any charge
paid in respect of a Iicence surrendered under subsection ( I).
CHAPTER 5
FINANCIAL PROVISIONS 45
This Chapter deals with the measures to jinance the provision of water resource
management services as well as jinancial and economic measures to support the
implementation of strategies aimed at water resource protection, conservation of
water and the beneficial use of water.
70 N() 19182 (GOVERNMENT GAZETTE. 26 AUG(JST 1998
In terms of Part 1 the Minister may from time to time, after public consultation,
establish a pricing strategy which may differentiate among geographical areas,
categories of water users or individual water users. The achievement of social equity
is one qf the considerations in setting differentiated charges. Water use charges are to 5
be used to fund the direct and related costs of water resource management,
development and use, and may also be used to achieve an equitable and eficieut
allocation of water. In addition, they may also be used to ensure compliance with
prescribed standards and water management practices according to the user pays and
polluter pays principles. Water use charges will be used as a means of encouraging 10
reduction in waste, and provision is made for incentives for effective and eficient
water use. Non-payment of water use charges will attract penalties, including the
possible restriction or suspension of water supply from a waterwork or of an
authorisation to use water.
56. ( 1 ) The Minister may, with the concurrence of the Ministry of Finance, from time
to time by notice in the Gazerre, establish a pricing strategy for charges for any water use
within the framework of existing relevant government policy.
(2) The pricing stmtegy may contain a strategy for setting water use charges
(u) for funding water resource management, including the related costs of 20
(i) gathering information;
(ii) monitoring water resources and their use;
(iii) controlling water resources;
(iv) wuter resource protection, including the discharge of waste tind the
protection of the Reserve; and
(v) water conservation;
(b) for funding water resource development and use of waterworks, including-
(i) the costs of investigation and planning;
(ii) the costs of design and construction;
(iii) pre-financing of development; 30
(iv) the costs of operation and maintenance of waterworks;
(v) a return on assets; and
(vi) the costs of water distribution; and
(c) for achieving the equitable and eflicient allocation of water.
(3) The pricing strategy may- 35
(a) differentiate on an equitable basis between
(i) different types of geographic areas;
(ii) ditferent categories of water use; and
(iii) dilferent water users;
(b) provide for charges to be paid by either -K)
(i) MI appropriate water management institution; or
(ii) consumers directly;
(c) provide for the basis of establishing charges;
(d) provide for a rebate for water returned to a water resource; and
(e) provide cm an equitable basis for some elements of the charges to be waived 45
in respect of specific users for a specified period of time.
(4) The pricing strategy may ditierentiate under subsection (3)(a)-
(U) in respect of ditlerent geographic areas, on the basis of-
(i) socio-economic aspects within the area in question;
(ii) dw physical attributes of each mew and 50
(iii) the demographic attributes of each area;
(b) in respect of ditierent types of water uses, on the basis of
72 N() 1{)182 (; OVERNNIENT GAZETTE. 26 AUG(JST 1998
Act No. 36. 1998 N/\Tlo NAl. W.KIE < ACT. 199S
(a) may be made by the Minister and are payabi; to the state: and
(h) may bc apportioned between dif~ereot water management areas according to
the extent of the specific benctits which each water management area derives
m will derive from the water uses for which the charges are made,
(4) Any person liable to puy water charges to a wat( r services institution as defined 5
in the Water Services Act, 1997 (Act No. 108 of 1997), for water supply ser\ices or
sanitation services may not be charged for those servicas in terms of this Act.
(5) No charge made under this Act may be ot sac h a nature as to constitute the
imposition of a tax, levy or duty.
5S. ( 1 ) The Minister may direct any water manage nent institution to recover any
charges for water use made by the Minister under set tion 57( I )(a) from water users
within its water management area or area of operation, as the case may be.
(2) A water management institution which has been directed to recover any such
charges may retain such portion of all charges recover[:d in order to recompense it for 15
expenses and losses, as the Minister may allow.
(3) A water management institution which has been directed to recover any such
charges
(u) is jointly and severally liable to the state witt the water users concerned: and
(b) may recover any amounts paid by it in terms .]f puragraph ((~ ) from the water 20
users concerned.
60. ( I ) A charge made in terms 01 sec(ion 57( I ). inclu Jing any interest. is a char:c tm
the land t~l which the water use relates and is recoverable from the current owner ~~f the
land without releasing any other person who may be Ii: ble for the charge.
(2) The Minister or relevant water management inst tution must
((I) on written application by any person; and 50
(/)) within 30 days of the application,
76 N(), 19182 GOVE RNMENT GAZEETE, 26 AUGUST 1998
issue a certificate stating the amount ot any unpaid wate charges and any interest due in
respect of any land.
(3) If a certificate is not issued within the period of 30 days, the provisions of
subsection ( I ) cease to apply to that property, notwiths anding section 66.
Part 2 deals with jinancial assistance, which n ~ay be granted once certain
considerations are taken into account.
61. ( I ) The Minister may, subject to a regulation made under section 62, give financial
assistance to any person for the purposes of this Act, i lcluding assistance for making 10
Iicence applications, in the form of grants, loans or subsidies, which may be made
subject to such conditions as the Minister may determitle.
(2) The financial assistance must be from funds
(o) appropriated by Parl iarnent; or
(b) which may under this Act or otherwise Iawfl Ily be used for the purposes in 15
question.
(3) Before giving any financial assistance, the Minister must take into account all 1
relevant considerations, including
(a) the need for equity;
(b,J the need for transparency; Z()
(c) the need for redressing the results of past rat] al and gender discrimination;
(d) the purpose of the financial assistance;
(e) the financial position of the recipient: and
(H the need for water resource protection.
(4) A person who wilfully fails to comply with any obligations imposed by this Act is 25
not eligible for financial assistance under this Act.
CHAPTER 6
Part I of this Chapter sets out various powers and di ties of the Minister which are
of a general nature, such as the powers of delegt tion and expropriation, and
intervention in lifigahon. More speci$c powers and dui ies are dealt with elsewhere in
the Act.
63. ( 1 ) The Minister may, in writing and subject to cc nditions, delegate a power and
duty vested in the Minister in terms of this Act to-
(u) an official of the Department by name;
(b) the holder of an office in the Department;
(c) a water management institution; 45
(d) an advisory committee established under sectj on 99; or
78 IN(), l~)lx? G(IV1 RN NIENT GAZETTE. 26 AUGIJST 199X
(e) a water board as defined in section I of the Water Ser\ices Act, 1997 (Act
No 108 of 1997).
(2) The Minister may not delegate the power
(u) [omake a regulation;
(h) to authorise a water management institution to expropriate under section 5
64( 1):
(() to appoint a melmber of the governing boarj of a catchmeot management
agency; or
(d) toappoint amemher of the Water Tribunal.
(3) The Minister may, in writing and subject to cond tions, permit a person to whom 1()
a power c~r duty has been delegated to delegate that (UI ction to another person.
(4) The Minister may give u directive to the Dire Xor-General in rekrtion IL) the
exercise of any of the Director-Generals powers c r perftwmance of any of the
Director-Generals duties, inctuding any power dclegat xl to the Director-General.
(5) The Director-General mmt give elfcct to a direct ve in terms of subsection (4). Is
Expropriation of property
65. ( I ) If a person who is required under this Act to undertake rehabilitation or other
remedial work on the land of another. reasonably requir(s access to thtit land in order to 30
elfect the reh;ibiiitation or remedial work, but is unable o acquire access on reasonable
terms, the Minister may
(o) expropriate the necessary rights in respect of that land for the benefit of the
person undertaking the rehabilitation or remedial work, who will then be
vested with the expropriated rights; and 35
(/J) recover all costs incurred in connection with t le expropriation, including any
compensation payable, from the person for v hose benefit the expropriation
was effected.
(2) Where a servitude of abutment, aqueduct or submt rsion is expropriated under this
section. the Minister or water management institution rt sponsible for the exprx~priation 40
has the same rights as those vesting in the holder of a s ;rvitude under section 128.
66, The Minister may, in exceptional circumstances : nd for a good reason. extend a
time period or condone a failure to comply with a time period.
(a) dispense with the requirements of this Act re sting to prior publication or to
obtaining und considering public comment l~elore any instrument contem-
plated in section 158(I) is made m issued:
(h) dispense with notice periods or time limits required by or under this Act:
(c) authorise a water management institution to f ispense with s
(i) the requirements of this Act relating to F rim publication or to obtaining
and considering public comment befo e any instrument is made or
issued; and
(ii) notice periods or time limits required by or under this Act.
(2) Anything done under subsection ( 1 ) 1 ()
(a) must be withdrawn or repealed within a max mum period of two years after
the emergency situation or the urgency cease; to exist; and
(b) must be mentioned in the Ministers annual r :port to Parliament.
Intervention in litigation
68. The Minister may intervene in litigation before a court or in a hearing before the 15
Water Tribunal with regard to any matter contemplated in this Act,
Part 2 requires the Minister to consult with the public when making regulations
under this Act, and also to submit regulations for scrl tiny by the National Assembly
and by the National Council of Provinces. If the National Assembly rejects a 20
regulation it must be repealed or amended.
Making of regulations
69. ( 1 ) The Minister must, before making any regul:ltions under this Act
(a} publish a notice in the Ga:erre-
(i) setting out the dmft regulations; and 25
(ii) inviting written comments to be submitted on the proposed regulations,
specifying an address to which and a d: te before which the comments
must be submitted, which date may net be earlier than 60 days after
publication of the notice;
(b) consider what further steps, if any, are approp iate to bring the contents of the 30
notice to the attention of interested persons, and take those steps which the
Minister considers to be appropriate; and
(c) consider all comments received on or before the date specified in paragraph
(a)(ii): and
(d) on request by the National Assembly or the National Council of Provinces or 35
a committee of the National Assembly or the National Council of Provinces
report the extent to which a specific comment has been taken into account, or
if a comment was not taken into account, prx vide the reason why it was not
taken into account.
(2) Any regulation made under this Act may provide t lat a contravention of or failure 40
to comply with a regulation is an offence and that any person found guilty of the otfence
is liable to a fine or to imprisonment for a period not e :ceeding 5 years.
Consideration of regulations
70. ( I ) The Minister must, within 30 days after makin; : any regulations under this Act,
table the regulations in the National Assembly and the N uional Council of Provinces for 45
consideration.
(2) In considering regulations
(c{) tabled in the National Assembly. a committee of the National Assembly must
consider and report to the National Assembly, and
82 N() l~)lx? GO\ERNMENT GAZETtTi 26 AIJGUST 1998
71. ( I ) The Minister must, within 30 days after being inkmned in writing that the
National Assembly has rejected any regulations, repeal or amend those regulations so tis
[o address the matters raised by the Nutiorml Assembly.
(2) Any regulations rejected by the National Assembly remain in force until repealed
or umended. 15
The Minister has the responsibility to manage and authorise the use of the nations
water resources. This means that the Minister fuljils the functions of a catchment
managetnent agency in a water management area for which no catchment
management agency is established, or where such an agency has been established but 30
is not functional. The Minister may dispense with certain requirements of this Act for
as long as is necessary to deal with an urgent situation or an emergency.
72. ( I ) In areas for which a catchment management agency is not established or, it 35
established, is not functional, all powers and duties of a catchment management agency,
including those powers and duties described in sections 79 and 80 and in Schedule 3.
vest in the Minister,
(2) in areas for which a catchmen( management agency is established, those powers
tind duties described in Schedule 3 which have not been assigned by the Minister to the 40
c;ltchment munagemen[ ugency, vest in the Minister.
73. ( 1 ) The Minister may, after consultation with the c~tchment management ugency
concerned. by notice in [he Ca;etre. assign to that catchment management agency
([[) a po\ver or duty ot u responsible authority; and 45
(l)) any power or duty listed in Schedule ~.
(2) [n iissignin,g :tny power or duty under subsection ( I), the Minister nmy -
(~~) iimi[ [he at-ca w i[hin which an assigned power may be exercised or duty may
be performed: and
(b) attirch conditions to that assignment, 50
13) t3cltwc asiignjng a power or duty to a catchment mwmgement tigency under
subsection ( ] ). lbe Minisicr must consider-
X4 N{) 191x2 (; OVIRNMENT GAZETTE, 26 AIJGIIST 1998
(~~) the capticity ol [he catchment mmrgement rrgency to exercise the power or
perform the duty; and
(b) lbc clcsirability 01 tissigning Ihirt power or duty.
(4) The Minister must promote the management of water resources at the catchment
management level by assigning powers and duties to catchment rnanagerntmt agencies 5
v hen it is desirable to do so.
75. The Director-Genmrl may, for the purposes of this Act, in writing and subject to
conditions, delegate a power, including a power granted or delegated to the
Direclor-Geneml under this Act, to- 25
(u) an o(liciat of the Department by name;
(b) the holder of an ofiice in the Department; or
([) a waler mmagernent institution.
CHAPTER 7
78. ( I ) The Minister may, subject to section 6(1 )(c), on his or her own initiative or
after receiving a proposal conttiiriing the information required in terms of section 77( 1 ).
by notice in the Gaze[te-
(a) establish a catchment management agency, give it a name and identify ond
determine its water management area; or 35
(b) amend the name or water management area of an established catchment
management agency.
(2) The Minister may
(a) require a person who has submitted a proposal contemplated in subsection ( 1 ),
to provide the Minister with information additional to that required by section 40
77(l); and
(b) instruct the Director-General to conduct an investigation regarding
(i) the establishment of a catchment management agency; or
(ii) a proposal submitted in terms of subsection (1).
(3) Before the establishment of a catchment management agency the Minister 45
must-
(a) publish a notice in the Gaze?te
(i) setting out the proposed establishment of the catchment management
agency, the proposed name and the proposed water management area;
and 50
(ii ) inviting written comments to be submitted on the proposal specifying an
address to which and a date before which the comments are to be
submitted, which date may not be earlier than 60 days after publication of
the notice;
(b) consider what further steps, if any, are appropriate to bring the contents of the 55
Ns N(1 l~)lx2 (ioVllRNNIENT GAZETIE. 26 A(JG(l Sr l~J9X
no[icc to IIW utmnlion of interested persons. and [ake those steps which [he
klini>(cr c(msiclers to bc appropriate; and
(t) c(m~idcr iJll comlnents received on or bekme (be da[c specified in parugraph
([[)( ii).
(4) It tlw Minis[er wanls to amend the name O( a cxrtchmtmr management agency or 5
IIw wa(er man:igclncnt area <)f a catcbment nunagrmcnl agency. the procedure set oat in
subsecti(m (3) tnus[ be followed with any necessary changes: Pro\ided thai where an
a]nendment does not affect the rights of any person the procedure set out in subsection
(3) need no[ be IOI1OWCL
79. ( 1 ) A catchment management agency is a body corporate, and htis the powers of
a natural person of full capacity, except those powers which
(a) by nature cm on] y attach to naturtil persons; or
(b) m-e inconsistent with this Act.
(2) Schedule 4 trpplies to a catchment management agency, its governing board and 15
commi![ces and the members of the hoard and committees.
(3) A cutchinent management agency may perform-
(a) tiny 01 its lunclions; or
(h) any function which is reasonably incidental to tiny of its (unctions,
outside its water mtinagement area, if this does rrot Z()
(i) limit its capfici(y to perform its functions in its water management arwr; or
(ii) detrimentally atfect mother water management institution.
(4) [0 perhmning its functions a calchmerrt management agency must
(a) be mindtu] of lhe constitutional imperative [o redress the results of pas( racial
and gender discrimination and to achieve equitable access for all to the wuler 25
resources under its control;
(b) strive towards achieving co-operation and consensus in managing the water
resources under its control; and
([) act prudently in financitit mtr[[ers.
80. Subject to Chapler 2 and section 79, upon the establishment of a catchment
management agency, (he initial functions of a ca(chment management agency we-
to investigate and advise interested persons (m the protection. USC, develop-
ment. conservation, management and control ot the water resources in its
waler management urea; 35
to develop a catchnrcnt management stmtegy;
10 co-ordinate the related activities of watel users and of the water
management institutions within its water management area;
10 promote [he co-ordination otits implementation with the irl]pletnet]ti~ti~~i] ()[
tiny applicable development plan establisheli in terms of the Water Scr\rces 40
Act, 1997 (Act No. 108 of 1997); and
to promote community ptirticipation in the projection, use, devclopmcltl.
c(mw\a[ion. n~anagcment and con[rol of (hc water resources in its water
management area,
Part 2 describes the appointmetlt ojtnembers of the governing board qfa catchment
management agency. The board of a catchment manageme)tt agency will be
constituted in such a way that interests of the various stakeholders are represented or
rejlected in a balanced manner, and the necessary expertise to operate effectively is
provided. Members t~f the governing board can be elected or nominated by the 50
diflerent water aser groups for appointment t by the Minister, and the Minister may of
his or her own accorli appoint, filr-ther members. The Minister may also remove board
members for good reason.
w) N(I. 1)1%2 [;OV :RNNIJ:NT (; AZIYrTt:. 26 AIJ(;UST 198
81. ( 1 ) The members of a governing board of a catcl ment management agency must
he appointed by the Minister who. in making such ap Jointment. must do so with the
object of achieving a balance among the interests of w iter users, potential water users.
local and provincial government and environmental in crest groups. 5
(~) Notwithstanding subse~ti~~ns (~) to (~) the Mi Iister nlust, from time to time,
determine the extent to which relevant local governme Its should be represented on the
governing hoard of each catchrnent management agenty.
(3) Before appointing members to the go\erning beard, the Minister must establish
tin wivisory committee contemplated in Chapter 9, to I :commend to the Minister 10
(a) which organs of slate and bodies represenl ing different sectors and other
interests within the water management area of the catchment management
agency should be represented or reflected on the governing board; and
(b) the number of persons which each of them s lould be invited to nominate.
(4) The committee must consult with the relevant or ~ans of state and interest groups 15
before making its recommendations.
(5) After receiving the committees recommendat ens, the Minister must decide
which organs of state and bodies will be invited t, J nominate representatives for
appointment to the governing board. and the numbt r of representatives each may
nominate. 2(I
(6) The Ministers decision must be communicated o the organs of state and bodies
concerned and the Minister must take the necessary st :ps to obtain nominations from
them by a date specified by the Minister.
(7) The Minister must appoint the persons nominattd by the organs of state and the
bodies concerned in accordance with the invitation, un ess 25
([7) any such person is not a (it and proper person o serve on the governing board;
or
(h) any such organ of state or body has not follo ved its own internal procedures
in making the nomination.
(8) If the Minister does not appoint a nominee. the dinister must 30
((J) inform the organ of state or body concerne i and state the reasons for not
appointing that nominee; and
(b) invite a further nomination from that organ c f state or body.
(9) If one or more nominations are still outstandi:lg on the date specified under
subsection (6), the Minister may appoint members of the board and till any vacancy 35
later.
( 10) After appointing members to the board the k inister may appoint additional
members selected by the Minister in order to
(a) represent or reflect the interests identified by the advisory committee;
(b) achieve sufficient gender representation; 40
(c) achieve sufficient demographic representation] ;
(d) achieve representation of the Department;
(e) achieve representation of disadvantaged pers ms or communities which have
been prejudiced by past racial and gender discrimination in relation to access
to water; and 45
(~) obtain the expertise necessary for the efficient exercise of the boards. powers
and performance of its duties.
( 1 I ) A member must be appointed for a specified (e] m of otlice.
( 12) The Minister may extend the term of office of; member,
( 13) If the term of office of a member expires before he first meeting of a new board 50
takes place. the existing member remains in oilice until that first meeting takes place.
( 14) A member nominated for appointment to the boi rd by an organ of state or body
is accountable to that organ of state or body.
82. ( I ) The Minister must convene the first meetin < of the governing board of a
()? No. 19182 GOVE RNMENT GAZETTE, 26 AUGUST 1998
83. ( I ) The Minister may remove a member from a governing board, or remove the 15
chairperson or deputy chairperson from office, if
(a) there is good reason for doing so;
(h) the person concerned has had an opportunity c f making representations to the
Minister; and
(c) the Minister has consulted with the governing board. 20
(2) The Minister must remove a member nominated b! an organ of state or body from
a governing board if that organ of state or body request i the Minister to do so.
(3) [f a person ceases for any reason to be a member c f a governing board before that
persons term of otlice expires, the Minister may, for the remainder of the term of
office 25
(OJ if that person was nominated by any organ of state or body, appoint another
person nominated by that organ or body; or
(IJ) if that person was selected by the Minister, a[ point another person.
Part 3 deals with the functions and operation of catc hment management agencies. 30
Initial functions, dealt with in Part 2, include the invest gation of and advice on water
resources, the co-ordination of the related activities of other water management
institutions within its water management area, the development of a catchment
management strategy and the promotion of community participation in water
resource management within its water management area. Additional powers and 35
duties described in Schedule 3 may be assigned or de~ egated to agencies such as to
establish water use rules and management systems, to direct users to terminate illegal
uses of wate~ and to temporarily limit the use of wate) dunng penods of shortage.
A catchment management agency may be jinancefi by the state from water use
charges made in its water management area or from a vy other source. 40
84. (l) A catchment management agency may raise a Iy funds required by it for the
purpose of exercising any of its powers and carrying out ~ my of its duties in terms of this
Act.
(2) A catchment management agency must be funded by 45
(a) money appropriated by Parliament;
(b) water use charges; and
(c) money obtained from any other lawful source f x the purpose of exercising its
powers and carrying out its duties in terms of his Act.
85. A catchment management agency must provide thl Director-General with copies
94 N(). 191X2 GOVE ?N!vIENT GAZETTE, 26 ALrGUST 1998
86. ( I ) Subject to subsections (2) and (3), a catchn[ent management agency may 5
delegate my power to
(a) a member of its governing board;
(b) an employee of any water management institution (including itself), by name,
or to the holder of an office in that institution: or
(c) any committee established by the cotchmer t management agency which lo
consists only of members of the governin{ board or employees of the
catchment mamrgetnent agency: and
((1) any other person or body only with the writtc I consent of the Minister.
(2) A catchment management agency may not deleg; te
([/) the power of delegation: or 15
(b) any power to make water use Charges.
(3) A catchment management agency may only dele.g [te a power to authorise the use
of water. it this power is delegated to a committee consi: ting of three or more members
01 its governing board.
Intervention by Minister
(h) after having afforded the catchrnent manage lment agency a hearing on any
submissions received,
tuke over the relevant power or duty 01 the catchment I management agency.
(4) [f the Minister takes over a power or duty of a cd chment mtinagernent agency
(a) the Minister may do anything which the catchlnent management agency might 5
otherwise be empowered or required to dc by or under this Act, to the
exclusion of the catchment management agelcy;
(b) the board of the catchment management agent y may not, while the Minister is
responsible for that power or duty, exercise a ly of its powers or perform any
of its duties relating to that power or duty; I ()
(c) an employee or a contractor of the catcbn ent management agency must
comply with a directive given by the Ministe-;
(d) as soon as the Minister is satisfied that the cachment management agency is
once more able to exercise its powers or pe form its duties effectively, tbe
Minister must cease exercising any such po .vers and performing any such 15
duties; and
(c) the Minister may recover from the catch nent management agency all
reasonable costs incurred, including any losss suf~ered as a result of iawfu]
and reasonable action taken under this sectic n, except to the extent that the
loss is caused or contributed to by the negligence of the Minister, or any 20
person under the control of the Minister.
88. ( 1 ) The Minister may, by notice in the Gtic fte, disestablish a catchrnent
management agency if it is desirable
(a) for purposes 0[ re-organisin,g water managem( nt institutions in that area in (he 25
interests of effective water resource managen ent;
(b) because the catchment management agerw: cannot or does not operate
effectively; or
(c) because there is no longer a need for the catc lment management agency.
(2) Before disestablishing a catchmeot management agency the Minister must 30
([7) publish a notice in tbe G(~;c(It-
(i) stating the intention to disestablish the ( atchment management agency
aJld the reasons therefor; and
(ii) inviting written comments on the propo$ :d disestablishment and gi\ing
a specified address to which and a date bc fore which the comments are to 35
he submitted. which date may not he earlier than 60 days after
publication of the notice:
(b) consider what further steps, if any, are appropt iate to bring the contents of the
notice to the attention of interested persons, md take those steps which the
Minister considers to be appropriate; and 40
(c) consider all comments received on or before he specified date.
liubiiities vest in the Minister and the Minister must wind up its affairs and assume the
powers and du[ics of [he catchment management agency for the period of winding up.
(5) No transter duty, other tax or duty is payable in respect of the transfer of any
assets in terms ot this section.
CHAPTER 8
This Chapter deals with the establishment, powers and disestablishment of water
user associations. Although water user associations are water management institu-
tions their primary purpose, unlike catchment management agencies, is not water
management. They operate at a restricted localised level, and are in effect
co-operative associations of individual water users who wish to undertake water- 30
related activities for their mutual benefit. A water user association may exercise
management powers and duties only if and to the extent these have been assigned or
delegated to it. The Minister establishes and disestablishes water user associations
according to procedures set out in the Chapter. A water user association for a
particular purpose would usually be established following a proposal to the Minister 35
by an interested person, but such an association may also be established on the
Ministers initiative. The functions of a water user association depend on its approved
constitution, which can be expected to conform to a large extent to the model
constitution in Schedule 5. This Schedule also makes detailed provisions fbr the
management and operation of water user associations. Although water user 40
associations must operate within the framework of national policy and standards,
particularly the national water resource strategy, the Minister may exercise control
over them by giving them directives or by temporarily taking over their functions
under particular circutnstances.
Existing irrigation boards, subterranean water control boards and water boards 45
established for stock watering purposes will continue in operation until they are
restructured as water user associations.
92. ( 1 ) The Miilister miiy on his or her own ini(ia[ive or irfier receiving :i propowil
cont~tining [he inlormution required in terms ot section 9 I ( I ), by notice in the Gacet{e-
((/) estiiblish a water user dissociation, give it a niunc, determine its areti of
operation and iipprx)ve its constitution subject to section 93(2); or 15
(b) a m e n d Ihe ntime, weir of oper-:ition o r a p p r o v e ;tn iimemlment to tht
constitution of an cs(ablished water user association.
(2) The Minister nuiy-
(a) require ii person who h:ls submitted ii proposal in terms of subsection ( I ) to
provide the Minister with iiilditional infbrmiition to thut required by section 20
91(l); and
(b) instruct the Director-Geneml to conduct an investigation regarding
(i) the establishment of a wirtcr user associu(ion; or
(ii) ~i prop~)s:il submitted in terms of subscctioil ( 1).
(3) Before the establishment of ii wtiter user association the Minister nJilsI- ~5
((l) pliblish :i notice in the Gctzc([e-
(i) setting out the proposed establishment of the w:iter user w+ociirtion, the
proptlsed name :incl the proposed area of oper~ition; :ind
(ii) inviting written comments to be slibtnitted on the propmir]s, specifying
an :iddress to which :ind :i date before which the comments :ire to be 30
submitted, which date may not be e;irlier than 60 ckiys :itier pub[ictition of
the rmtice;
(1)) consider whirt further steps, if any, are :ippropriiite to bring the cnntents of the
notice to the titten[ion of interested persons, and tiik~ (hose steps which the
Minister cnnsiders to be irppropriiite; and 35
([) consider any comments received on or before the diite specilieil in pariigri]ph
(t/J( ii).
(4) The Minister nctxi not fiiltil :ill the requirements of subsecti(m (3), if there hits
beeil sutficienl consultation on ii pr(~pos;tl submitted in terms ol section 91.
(5) The Minister nMy- 40
([/) recover the cost of complying with subsection (3) from the woter user
association once it has been established; or
(b) require the person proposing the establishment ofthc wtiter mwr iissociittion to
pay the costs in :idvance.
93. ( I ) Schcdulc 5 conttiins ii model constitutiotl which m:iy be used its :i biisis for
drttwing up and propming o constitution fur :i proposed wiiter user ilSSOciiitiO1l.
(?) The constitution of :i w;iter Liser Jssocititi(m I1lLIS( contiiin at !c:ist
((l) dct~iils i)t [he pt-incip;il ~ind ancill:try fi]nc[ions of t h e iissocitition;
(b) the procedures Liid requirements for ildinittirlg new m e m b e r s [0 tlw 50
iissocii ilion;
(() the voting po\vers of members;
((/) prtxxxtures tor [crmin:iting membership;
(() procedures [[w electing the mirnagement committee 01 the association;
ff) pi-(wdur:ll rcquircnwnts for :ippointnwnt of employees of the associ;]iion: 55
(s) procedilr:il requirenmnts for obtaining lo~tns; :ind
(/1) the Iiniinci:il oblig:ttions of membm towards the associ:i[ion.
102 No. 19182 GOVERNMENT GAZETTE, 26 AUGUST 1998
(3) A constitution Imust also incorporate such other provisions as the Minister may
reason~bly require and must be adopted by the members of tbe association and approved
by the Minister before it can exercise any powers or perform any duties.
(4) A constitution adopted by a water user association is binding on all its members.
94. ( I ) A water user association is a body corporate and has the powers of a natural
person of full capacity, except those powers which
(a) by nature can only attach to natural persons; or
(b) are inconsistent with this Act.
(2) Schedule 4 (excluding item 4(3) of Part 1 of that Schedule) applies to a water user 10
association as if
(a) the water user association were an institution; and
(b) a member of the management committee were a director,
within the meaning of that Schedule, except to the extent that the Minister may
otherwise direct. 15
95. ( I ) The Minister may, after consulting with a water user association, direct that a
person be admitted as a member of the association on such conditions as are fair and
equitable.
(2) A water user association must comply with a directive given under subsection(1). 20
(3) If a wuter user association
(u) is in financial ditliculties or is being otherwise mismanaged;
(b) has acted unfairly or in a discriminatory or inequitable way towards any
member of the association;
(c) has failed to admit persons to membership unfairly or on discriminatory 25
grounds;
(d) has failed to comply with any directive given by the Minister under this Act;
(e) has obstructed the Minister or any other water management institution in
exercising a power or performing a duty in terms of this Act;
(~) is unable to exercise its powers or perform its duties effectively due to 30
dissension among the management committee or its members;
(g) has failed to comply with its constitution or this Act; or
(h) has become redundant or ineffective,
the Minister may
(i) direct tbe association to take any action specified by the Minister; 35
(ii) withhold any financial assistance which might otherwise be available to the
water user association until the association has complied with such directive;
or
(iii) by notice addressed to the association and the member concerned, terminate
the office of that member of the management committee and arrange for the 40
resulting vacancy on the management committee to be filled.
(4) A directive contemplated in subsection (3)(i) must state
(u) the nature of the deficiency;
(b) the steps wbicb must be taken to remedy the situation; and
(c) a reasonable period within which those steps must be taken. 45
(5) If the water user association fails to remedy the situation within the given period,
the Minister may-
(a) after having given that association a reasonable opportunity to be heard; and
(b) after having afforded the association a hearing on any submissions received,
take over the relevant function of the association, or appoint a suitable person to take 50
over the power or duty.
(6) If the Minister, or a person appointed by the Minister, takes over a power or duty
of a water user association
(u) the Minister or the appointee may do anything which the association might
otherwise be empowered or required to do in terms of its constitution or by or 55
under this Act, to the exclusion of the association;
104 N,I. 1IX? (; OVIXNMENI GAZLWTE, 26 A(IGLIST 1998
(b) [he mMI;Igemem committee of tbc association may not, while the Minister (M
(Iw appointee is responsible for lbal power or duty, exercise any of its powers
or pet-ftmn any ot i[s duties relating to thtit power or duty;
(() an elnploycc or u contractor of the association must comply with a directi\ e
given by Ilw Minister or (he :Ippointee; 5
(1/) M soon m (be Minister is satisfied [hat the tissocia(ion is once more ublc (()
exercise its powers find pertorm its duties effectively, the Minister or the
appointee, as the cusc mtiy be, musI cease exercising such powers and
pcrlorrning such duties: and
(,) [he Minister may recover from the association all reasonable costs incurred by I ()
the Ministm or the appointee, including-
(i) the reasonable fees or disbursements of the appointee; and
(ii) any losses suffered as a result of Itiwful and reasonable action taken
under this section, except to the extent that the loss is caused or
contributed to by the negligence of the Minister or the appointee or my 15
person under their control.
97. ( 1 ) When a water user association is disestablished. its idfairs must be wound lIp
(</) as provided Ibr in ils constitution; or
(b) by a person appointed by the Minister in accordtincc with directives given by
the Minisler it lhe constitution does not provide Ior winding up.
( 2 ) The costs of winding up d water user association are a cost uguinst the eslate otthe 45
Msocial ion.
(3) Creditors of a water user association must be paid occording to the order ot
preltrence established by the Insolvency Act, 1936 (Act No. 24 of 1936).
(4) If the atiairs ola waler user association are wound up, the Minister may direct thtit
an amount equivalent to any linancial contributions with interest made to the associtition 50
I 06 N() 101X2 (;OV ;RNMENT GAZETTE, 26 AU(; UST 1998
from public funds be reimbursed, before assets are dif tributed among the members of
the association.
(5) No transfer duty, other tax or duty is payable n respect of the transfer of any
assets under subsection (4).
CHAPTER 9
100. The Minister may by regulation establish terms ot relerence and i~lly other rules 25
concernitlg the membership, powers and duties and or eratimr of a committee.
101. ( 1 ) The National Water Advisory Council established by section 3A of the Water
Act, 1956 (Act No. 54 ot 1956), the Advisory Committ( e on Safety of Dams established
by secti(m 9C(5 )(~~)(i) of the Water Act, 1956. and any advisory committee estahlishcd 30
under section 68( [ ) of the W.tter Act. 1956. mwst bc regarded as being an advisory
committee contemplated in this Act.
(2) Subject to (he Ministers powers under section ! 9
(a) Ibe name. powers and duties of a committee )r body referred to in subsection
( I ) remain the same i]s they were immedia[t Iy before the commencement of 35
this Act;
(b) any provision of the Water Act. 1956. or a r :gulation or notice issued under
tbiit Act regulating any matter contemplated m section 99, continues to apply
as it it were a regulati(m tnadc under sectim 1 ()(); and
(() any person holding ot}ice in a committee or t ody referred (o in subsection ( I ) 40
immediately before the conm~encenwnt of th s Act continues in office until the
expiration of that persons term ofappointmelt or until the committee or body
is disestablished, whichever happens sooner
CHAPTER 10
Under this Chapter the Minister may establish bo lies to implement international
agreements in respect of the management and develoi ment of water resources shared
with neigh bounng countries, and on regional co-opelation over water resources. The
governance, powers and duties of these bodies are determined by the Minister in
accordance with the relevant international agreeme vt, but they may also be given 50
additional functions, and they may perform their Junctions outside the Republic.
110 No 191 W GOVI :RNMENT GAZETTE, 26 AUGUST 1998
Certain existing international bodies are deemed to b e bodies established under this
Act.
102. The Minister may, in consultation with the Cabinet, by notice in the Gc7zefte,
establish abody to implement any international agreement entered into by the South 5
African Government and a foreign government relatin,: to
(a) investigating, managing, monitoring and pro ecting water resources;
(b) regional co-operation cm water resources:
(c) acquiring, constructing, altering, operating o maintaining a waterwork; or
(d) the allocation, use and supply of water. I ()
103. ( I ) A notice contemplated in section 102 must, with due regard to the relevant
international agreement, give details of
(a) the governance of the body;
(tJ) the functions of the body; 15
(c) the financing of the body;
(d) mechanisms for controlling and supervising he affairs of the body;
(e) which items of Schedule 4, if any, apply to t le body;
(f) the disestablishment of the body and the win{ ing-up of the bodys affairs; and
(,?) any other matter necessary to give effect to ~ le agreement. 20
(2) [f the Minister is satisfied that it will not prejt{dice the capacity of a body to
perform the functions for which it was established, !he Minister may direct a body
established under section 102 to perform additional functions which may include, but
are not limited to, providing water management institr. [ions with
(o) management services; 25
(b) tinancial services:
(c) trzaining; a n d
(d) other support services.
(3) The body may perform its functions outside the Republic.
Powers of bodies 30
104. A body established under section 102 is a body corporate and has the powers of
a natural person of full capacity, except those powers vhich
(c7) by their nature can attach only to natural peI$ons; or
(h) are excluded by or are inconsistent with this Actor the relevant international
agreement. 35
105. (1) If given additional functions under section 113(2), a body must manage each
of its functions separately, and must account for them separately.
(2) A body must apply accounting practices con ,istent with generally accepted
accounting practices. 40
106. ( I ) Unless the international agreement provides >tberwise, a body must report on
the performance of its functions within three months after the end of its financial year.
(2) The report must-
(a) be accompanied by the bodys audited finan :ial statements for that financial 45
year: and
112 N<, IL)IX2 (;OVt RN MEN1 (;/\ Zt-lT[;. 26 A(JGUSr 1998
107. ( I ) The Minister may. with the comsetlt of the o her parties 10 the agreement. ~~r
il the agreemen( so provides. a p p o i n t a person (() inlcstigotc the aflilirs or fitltiil~ii{l 1 ()
pt)siti~~n 01 ;I body and tha( person may (i~r this purpose attend any meeting of the body.
(~) A boLly ,l)(ls(, s~lblccl to sub~e~[i~)n (1), on Iegucst, pr[)vidc t h e M i n i s t e r s
uppointce wi(b such -
(~1~ i[lii)l-lll:lli( )tlt)rl tlle:ltl`i]irs:itlc! fillilllci:ll p()sil(lfl ()tllleb()tly:
(h) :icccss [()ullb()()ks, :lcc(ltlr)(s, d()cl[[]]el]ts:lll( :lssets oltllebody::\ild Is
(t) informali(m nnddiit:~on w;derrcsourccs.
as may Iw required by the Minislcr{)r the Ministers a~pointcc.
(3) The Minister m;ty rccx)vcr fr~ml the b[dy c(mwmcd (he rc:lsonilhlc fees and
disburscnwnts (lfony pmwm ~qlpoinlcd uldcrsulmcli{m (1).
CHAPTER 11
109. The Minister may acquire. construct, tiller, rep:li r, operate or control government
waterworks in order to protect, use, develop, conserve, manage and control the na[ions
w:i(cr resources in the public interest.
111. The Minister may finance the acquisition, construction, alteration, repair.
opertition and control of government waterworks from funds uppropriatecf by Parliament 25
or obtained from any other source.
112. ( 1 ) The Mini~ter may muke wirter from a government waterwork available for
all{~cation in acc~mlancc with Chapter 4.
(?) The Minister InLIy [[l acc~]rcfance with Chapter 5 Iix a charge for Witer :lllO~alcd 30
lrom a governmen[ waterwork.
113. ( I ) The water of a go\crnnwnt wotcrwork and the surrxmnding st~te-ownecf land
may be made available for recreational purposes. either generally or for a specific
purpose, on tlw conditions and to the persons Lfetermi ned by the Minister. 35
(2) The Minister n]ay-
(t~) cuntrx)l or prohibit ticcess to any government watcrwork; and
(b) subject to this Act, nmkc rcasontibie charges tor-
( i ) tlw use of;
(ii) entry into; and 40
(iii) the LISC of any wuter surface or land associated with,
tiny government wuterwork for recreational purposes.
(3) Nothing dtme under this section exempts any person trom complying wi[h other
pi-ovisitms (~t this Act and with any other applic~hte law.
I l-t. This Act also applies to government waterworks Cotlsttuc[ed before lhe
c(~tl]l]~etlccll]ellt 01 this Acl.
(~) pJ() ~ovcrl,ln~nl w~~telwork referre~ [() in subsection ( i ) may be transferred, sold
or disposed 01 with(mt [he Jpproval of the nationid execu{ive, it its vtilue exceeds an
amount specified from time to titne by the Minister in concurrence with the Minislcr of
Fintince,
( 3 ) Where it g o v e r n m e n t waterwork is disposed of or Wmsferrecl k) a waler 5
mimtigemcnt institution, (he Minister of Finance may direct tba[ no transfer duty, {>[hcr
tax or duty is payable.
116. ( 1 ) The Minister may, with regard to a government wtiterwork, make regula[i(ms
providing for- I ()
(a) the management of iin(f control over governnwn[ wiit~rworks tind surrounding
stale-owned [and;
(})) the List of the water of a g o v e r n m e n t waterwork and t h e s u r r o u n d i n g
state-owned land; and
(c) chiuges for 15
(i) entrance to:
(ii) use of facifities at; ilfld
(iii) the privtite development of,
a government waterwork.
(~) ]11 making the regulations, the Minister must take into account all relevant
considerations, including
(a) the safety and protection of government waterworks;
(b) the need for control of the use of government waterworks;
(c) the safety and security of persons using government waterworks for
recrefitional purposes; and
(d) the cost of protecting and controlling government waterworks and the
recovery of these costs.
CHAPTER 12
SAFETY OF DAMS
This Chapter contains measures aimed at improving the safety of new and existing 30
datns with a safety risk so as to reduce the potential for harm to the public, damage to
property or to resource quality. 10 reduce the risk of a dam failure, control measures
require an owner to comply with certain directives and regulations, such as to submit
a report on the safety of a dam, to repair or alter a dam, or to appoint an approved
professional persou to undertake these tasks. These measures are in addition to the 35
owners comtnon law responsibility to ensure the s~fety of their dams. An approved
professional person has a statutory duty of care towards the State and the general
public and must fuljil, amongst other things, dejined responsibilities when acting
under this Chapter. Not all datns are subject to regulation under this Chapter, and the
Minister may exempt certain persons from its requirements. Only dams of a dejiued -lo
size, dams which have been declared to be dams with a safety risk, or dams falling into
a prescribed category are affected. All dams with a safety risk must be registered.
Compliance with any directive or regulation under this Chapter does not exempt an
owner from complying with any other provision of this Act, such as the requirement
for a licence or other authorisation for water use in respect of the dam. 45
Definitions
119. ( 1 ) When carrying (mt J task in terms of this Chupter, an approved protessiomd 50
pcrs<)n tilso has a duIy of care towards the State and the general public.
12(1 N{] 191S2 GOVERNMENT GAZETTE. 26 AUG[JST 1998
(2) An approved prt)lcssional person appointed to curry out a Iask on a dam must
((~) tnsure thut the iask is carried out according to acceptable dam engineering
prwlices;
(b) keep the prescribed records;
(t) compile the prescribed reports; and 5
{d) where the task includes constructing, altering or repairing a dam, issue a
completion certificate to the owner of the dwn to the eflect that the task on that
darn has been carried out according to the applicable design, drawings and
specificati(ms.
(3) An approved professional person appointed to carry out a dam safety evalutition 1 ()
nlust-
([~) consider whether the safety norms pertaining to the design, construction.
monitoring, operation, performance and maintenance of the dam satisfy
acceptable dam engineering practices; and
(b) compile a report on the matters contemplated in paragraph (a) according to the 15
prescribed requirements tind submit the signed and dated report to the owner
of the dam within the prescribed period.
120. ( I ) The owner of u dam with u safety risk must register that dam.
(~) An application for registration must be made within 120 days 20
(u) ufter the date on which the dam with a safety risk becomes cupable of
containing, storing or impounding water;
(b) after the date on which an already completed dwn is declared to be a dam with
a safety risk; or
(c) after publication of a notice declaring a category of dams to be dams with a 25
safety risk,
as the case may be.
(3) A successor-in-title to an owner of a dam with a safety risk must promptly inform
the Director-Geneml of the succession, for the substitution of the name of the owner.
Exemptions
122. ( 1 ) The Minister may exempt owners of dams belonging to certain categories, by
notice in the (l~:elte, from compliance with any provision of this Chapter or any
regLllation made under this Chapter, on conditions determined by the Minister.
(2) The Minister may in writing exempt an owner of a dam belonging to a certain 50
category from co[npliwwe with any provision of this Chapter on conditions determined
by the Minister.
I 2? N(), 10 I X2 GOVE tNMENT GAZETTE. 26 AUGUST 1998
(3) The Minister may withdraw (be exemplion or imp ~se further or new conditions in
respect of the exempti(m,
(4) Beturc deciding un an exemptiun. the Minister n ust consider
(a) [he degree ut risk or potcntiul risk pod by t )e dam or category of dalns 10
public satkty, pruperty and the resource quality: 5
(/)) the manner (~t design, cunstructiun. altcratiun repair, impoundment of water
in, operation or abandonment of the darn ur c ltegory of dams;
(() the supervision invulved in the dam or ca(egcry of darns;
(d) alternative measures pruposed fur regulating the design. construction,
alteration, repair, operation. maintenance. ilm~ uundment of water in, inspcc- 1 ()
tiun or abandunrnent of the darn ur categury o darns and the effectiveness ut
these measures;
(e) the knowledge and expertise ofthe persuns in~ .>lved in any task relating tu the
dam or cfitegory of darns:
(f) the costs relating tu the darn or categury of d; ms; 15
(s) any security provided ur intended tu be provid :d fur any damage which could
be caused by the dam or category of dams: ar d
(h) whether the dam ur cti{egory of dams are perrn tted in terms ut a licence ur any
other authuriwrtion issued by or under any otl er Act.
CHAPTER 13
Part I of this Chapter allows authorised persons to ~ nter and inspect property fbr a
number of parposes associated with implementing t) is Act. The rights of property
owners are protected in that only authorised persons K tay enter and inspect property;
authorised persons must carry a certljicate of authorisation and must produce that
certificate on request; in certain circumstances notice of entry must be given and the 35
consent of the person owning or occupying the proj )erty must be obtained before
entry; and in certain circumstances a warrant must b ? obtained prior to entry.
124. ( I ) The Minister or a water management institut on may, in writing, appoint any
suitable person as an authorised person to perform the tinctions contemplated in section 40
125( l), (2) and (3).
(2) An tiuthorised person must be provided with a cert ticate of appointment signed by
or on behalf of the Minister or a water management insti .ution in which the natLlre of the
authorised persons functions is described.
125. ( I ) An authorised person may. at any reasonabl time and without prior notice,
enter or cross a property with the necessary persons, veh cles, equipment and material in
order to carry out routine inspections of the use of watl:r under any authoris:ltion.
I 26 N{). 19182 GOVI ;RNMENT GAZETTE, 26 AUGLJST 199X
(2) An authorised person ]nay enter a property with the necessary persons, vehicles,
equipment and material-
([/) after giving reasonable notice to the owner or occupier of the property, which
notice mList state the purpose of the proposetl entry; and
(b) after obtaining the consent of the owner or o :cupier of that property. 5
in (mlcr t+-
(i) clean, repair, maintain, remove or demoli:h any government waterwork
operated by any water management instituti( n;
(ii) undertake any work necessary for cleaning, clearing. stabilizing and repairing
the water resource and protecting the resour[ e quality; IO
(iii) establish the suitability of any water resol [rce or site for constructing a
waterwork;
(iv) undertake any work necessary to comply with an obligation imposed on any
person under this Act, where that person has failed to fultil that obligation;
(v) erect any structure and to install and operate any equipment on a temporary Is
basis for monitoring and gathering intormati m on water resources; or
(vi) bring hetrvy equipment on to a property or OC( upy a property for any Ien.gtb of
time.
(3) An authorised person may, at any reasonable timl and without prior notice, on the
authority of a warrznt, enter a property with the necess: ry persons, vehicles, equipment 20
and material, and perform any action necessary to-
(a) investigate \vhether this Act. any condition : ttached to any authorised water
use by or under this Act or any notice or dirt ctive is being contravened;
(b) investigate whether any information supplie ~ in connection with the use of
water is accurate; or 25
([) carry out any of the activities referred to in subsection (2) where the consent
of the owner or occupier of that property ha! been withheld.
(4) A warrant referred to in subsection (3) must be i ;sued by a judge or a magistrate
who hasjurisdiction in the area where the property in ql estion is situated. and must only
be issued if it appears from information obtained on o .th that 30
(a) there are reasonable grounds for believin:. that this Act, any condition
attached to any authorised water use by or Jnder this Act or any notice or
directive, is being contravened:
(b) there are reasonable grounds for believing tlat any information supplied in
connection with the use of water is inaccural e; or 35
(c) it is necessary to carry out an activity mentio led in subsection (2) and access
to that property has been denied.
(5) If a warrant is likely to be issued if applied for bu[ the delay involved in obtaining
a warrant is likely to defeat the object of an inspection in terms of subsection (3)(a) or
(b), an authorised person may enter a property withoul a warrant. 40
(6) An authorised person entering property in terl m of this section must, at the
request of any person on that property, identify hiloself or herself and present a
certificate of appointment contemplated in section 124 2).
(7) Notwithstanding any provision of this section an authorised person may not,
under any circumstances, enter a dwelling without the clmsent of the occupier or without 45
a warrant authorizing entry.
Part 2: Servitudes
Part 2 deals with servitudes. A servitude is a right i hat a person has over property
belonging to another person. This Part allows a perso~ ~ who is authorised to use water
under the Act to claim a servitude over another perso, 1s land where this is necessary 50
to make that water use effective. For exatnple it might be necessary to lead water over
another persons land to take it from the source to th ? authonsed water users land,
l~x N{,, 191S2 GOVEI NMENT GAZETTE, 26 AUGLJST }998
and a servitude would be necessary to do this. A servitudz cannot be claimed unless the
claimant is authorised to u,se water, and if the authorisa ion is withdrawn or otherwise
terminated, the servitude will lapse. Servitudes are acqu red by agreement between the
authorised water user and the relevant land owner, either according to existing
procedures laid down in the Deeds Registries Actor by way of an agreement which is 5
made an order of court. Procedural detail.~ regarding th : acquisition of servitudes and
their registration are not set out in this Part but are contained in Schedule 2.
Definitions
Acquisition of servitudes
127. ( 1 ) A person who is aulhorised under this Act to use water may-
(a) claim a servitude of-
(i) abutment;
(ii) aqueduct: or 20
(iii) submersion; or
(b) obtain an amendment to any existing servit de of abutment, aqoedL[ct or
submersion,
to the extent that this is necessary to give effect to that imthorisatiorr.
(2) The servitude claimed under subsection ( I )(a) may be 25
(a} a personal servitude in ftivour of the cl~imant or
(b) a praedial servitude in favour of the claiman in the claimants capacity as
owner of property on which the claimant may use the water.
(3) A servitude under (his Chapter may also be claimed in respect of an existing
waterwork. 30
(4) A person who intends to claim a servitude uncle r this section must follow the
procedure set out in Schedule 2.
131. ( 1 ) In determining just and equitable compensation a High Court must take into
accxmnt till relevant tactors including, in addition to the matters contemplated in section
25 of [he C~nstitution_
((1) the nature of the servitude or amendment, including the nuture and function of 1 ()
the waterwork relating to the servitude or amendment;
(h) whether any existing waterwork will be used to give elfect to the servitude;
(1) (he probable durotion of the servitude;
(d) the extent of the deprivation of use of the land likely to be suflered as a result
of the servitude or amendment; 15
(t) the rental value of the IA atlected by the servitude or amendment;
(./) the nature and extent of the actual inconvenience or loss likely to be sutlered
as a result of the exercise of the rights under [he servitude or amendment;
(s) the extent to which the kmd can reasonably be rehabilitated on termination of
the servitude; 20
(}/) any advantage tbot the landowner, or other person with u compensatahle
interest in the land subject to the servitude, is likely to derive as a result of the
servitude or wnenchnent; and
(i) the public interest served by the waterwork relating to the servitude or
trmendment. 15
(~) A High Court may determine the time and manner of payment of the
compensation.
Cancellation of servitude 35
134. Subject to CIulpter 4. two or more persons who we nuthorised to USC water nlily
agree to- 4s
({1) cxmstrucl a joint waterwork; iind
(b) create :i wrvitudc associated with that waterwork, ~
[~) give eilcct to tbcir aLlth(miscd wfiter use.
I {4 !s(,, l~)lx2 (; OVERNMENr (; AZETTE, 26 AtJG[JST 1998
Part 3 deals with ownership and restoration relating to waterworks placed on the
land of another, and creates an exception to the general common law rule that
per.sotzal servitudes are not transferable from the holder to another person. It allows
transfers of personal servitudes that are held by the State and water management 5
institutions.
136. ( 1 ) Despite any law to the contrary, a personal servitude, whether registered or )5
not, held by the Minister or a water management institution may be transferred
(u) from the Minister to a water management institution; or
(b) from a water management institution to the Minister or to another wuter
management institution.
(2) The relevant Registrar of Deeds must register a notarially executed deed of 30
cession to transfer a registered personal servitude in terms of subsection ( 1 ).
CHAPTER 14
137. ( I ) The Minister must establish national monitoring systems on water resources
as soon os reasonably practicable. 45
(2) The systems must provide for the collection of appropriate data and information
necessary to assess, among other matters
((~) the quantity of water in the various water resoLlrces:
(b) the quality of water resources;
(c) the use of water resources; 50
(d) the rehabilitation of water resources;
I 30 N,). l~)lx1 (;ov EKNM[iNI GAzFITl:, 26 A(JG(JsI 19)8
Provision of information
141. The Minister may require in writing that imy person must, within Li reusonahle 40
gi\cll [Ime ~>r 011 ~ r~gl[l:lr b;l~is, provide the Dq):lr-tmcnt with JOy dtita, inlbrmation,
docuincnts, swnp]cs (w mi)teriais reasonably required for-
(~~) the purposes t)t tiny na(ional monitoring network (w national information
system; or
(b) the mimilgcmcnt wld protection 01 w:itcr resources. 45
Access to intormation
this Chapter mLlst be made available by the Minister, su )ject to any limitations imposed
by law. and the payment of a reasonable charge deterrr ined by the Minister.
Part 3 requires certain information relating to j700Ls, droughts and potential risks
to be made available to the public. Township layout vlans must indicate a spectjic Io
floodline. Water management institutions must use tie most appropriate means to
inform the public about anticipated jloods, droughts t r risks posed by water quality,
the failure of any dam or any other waterworks or my other related matter. The
Minister may establish ear[y warning systems to anticipate such events.
144. For the purposes of ensuring that al I persons wh] might be afrected have access
to information regarding potential flood hazards, no pi rson may establish a township
unless the layout plan shows, in a form acceptable to the local authority concerned, lines
indicating the maximum level likely to be reached by loodwaters on average once in
every I ()() years. 20
CHAPTER 15 35
This Chapter establishes the Water Tribunal to hear appeals against certain
decisions made by a responsible authority, catchment management agency or water
management institution under this Act. The Tribunal ~s an independent body, whose
members are appointed through an independent sele, tion process, and which may 40
conduct hearings throughout the Republic. A person may appeal to a High Court
against a decision of the Tribunal on a question of Iau. This Chapter also provides for
disputes to be resolved by mediation, if so directed by he Minister.
147. ( I ) Subject to section 146(4), after having cc nsidered the necessary field of
knowledge for the purposes of hearing a particula matter, the chairperson may
nominate one or more members of the Water Tribunal t( hear a matter and a decision by
such member or members constitutes a decision by the Tribunal. 25
(2) Administrative support for the Tribunal must )e provided by oflicials of the
Department designated by the Director-General, subje ot to the laws pertaining to the
secondment of oflicers in the Public Service.
(3) The expenditure of the Tribunal must be defraye ~ out of money appropriated by
Parliament for that put-pose or from any other source. 30
(4) Neither the Tribunal, the chairperson, the deF uty chairperson nor any other
member is liable for an act or omission committed in good faith while performing a
function in terms of this Act.
Mediation
150. ( I ) The Minister may at any time and in respt ct of any dispute between any 50
persons relating to any matter contemplated in this i .ct, at the request of a person
involved or on the Ministers own initiative, direct that t Ie persons concerned tittempt to
settle thcil- dispLlte through n process of mediation and negotiation.
(2) A directive under subsection ( I ) must specify the time when and the place where
sLIch process must start. 55
I 44 No, 191R2 (;OVE {NMENT GAZETTE. 26 AUGUST 1998
(3) Unless the persons concerned have informed th t Minister at least seven days
befbre the date specified in terms of subsection (2) that I Iey have appointed o mediator.
the Minister must appoint a mediator.
(4) Notwithstanding subsection (.; ), the parties may i t any time during the course of
meditation or negotiation proceedings, by agreement I etween them, appoint another 5
person to act as mediator.
(5) A person appointed by the Minister in terms ofs ~bsection (3) must either be an
official of the Department or an independent mediator.
(6) Where the Minister or the Department is a party t ) the dispute, the mediator may
not be an ollicial of the Department. [()
(7) The contents of all discussions which took plilce md of all submissions made as
part of a mediation process under this section are prit ileged in law, and may not be
received in evidence by any court of law, unless the pw ties agree otherwise.
(8) The fees and expenses of a mediator must be paid by
((7) the Department, if the Minister has appointed the mediator; or 15
(h) the parties, if they have appointed the rnediat )r.
CHAPTER 16
Offences
152. Where any person is convicted of an offence under this Act and
(u) another person has sutiered harm or loss as a result of the act or omission
constituting the offence; or
(b) damage has been caused to a water resource, 5
the Court may, in the same proceedings
(i) at the written request of the person who suffered the harm or loss; or
(ii) at the written request of the Minister in respect of the damage caused to a
water resource; and
(iii) in the presence of the convicted person, 10
enquire without pleadings into the harm, loss or damage and determine the extent
thereof.
Award of damages
153. After making a determination in terms of section 152, the Court may
(a) award damages for the loss or harm suflered by the person referred to in 15
section 152 against the accused;
(b) order the accused to pay for the cost of any remedial measures implemented
or to be implemented; and
(c) order that the remedial measures to be implemented, be undertaken either by
the accused or the relevant water management institution. 20
155. A High Court may, on application by the Minister or the water management
institution concerned, grant an interdict or any other appropriate order against any
person who has contravened any provision of this Act, including an order to discontinue
any activity constituting the contravention and to remedy the adverse effects of the
contravention. 35
CHAPTER 17
Purt 1: Liability
State hound
Limitation of liability
157. Neither the State nor any other person is liable for tiny damage or loss caused 5
by
(u) the exercise ot any power or the performance of any duty in terms of this Act:
or
(b) the failure to exercise any power, or perform any duty in terms of this Act,
unless the exercise of or tiilure to exercise the power, or pcrfornurncc or ftiihrre to 1()
perform the duty was unlawful, negligent or in bud faith.
158. ( 1 ) For the purposes of this section, instrument includes any regulation,
strategy, Iicence, directive or notice made, determined, issued or given in terms of this
Act. 15
(2) 1~ the proposed amendment or substitution of an instrument-
(u) is not likely to alter the rights and obligations of tiny person materially:
(b} corrects any clerical mistake, unintentional error or omission in an instrument;
(c) corrects any tigure rnisctilculated in an instrument; or
(d) corrects any rnisdescription of wry person, thing or property, Z()
the amendment or substitution muy be made without following the proccdLrre required
for establishing or giving ettect to the instrument.
Effect of delegation
159. Where a power is conferred on u person to dclegute the exercise O( u power then,
unless the contrary intention appears- 25
(u) such a delegation does not prevent the exercise O( that power. or the
performance of that duty by the person who made the delegation;
(b) such a delegation may be made subject to such conditions or limitations as the
person making that delegation mtiy specify; and
(c) a power so delegtited, when exercised or performed by the delegatee, must be 30
regarded m ha~rng been exercised or performed by the person making the
delegation.
160. ( I ) A notice, directive or other document issLwd in terms ot this Act in good faith 35
by any water management institution and purporting to have hecn signed by the
chairperson, secretary or chict executive officer of the institution mus[ be r~gi]rdd as
having been properly outhorised und issued in terms of a valid decisi{m, until evidence
to the contrary is adduced.
(2) Any document issued in terms of this Act without authority may be ratifie[i 40
subsequently.
161. ( I ) A nL)ticc, direclive or other document issued in god faith in terms of this Act,
but which does not comply with this Act, is valid if the non-complifince is not muterid
and does not pre,judicc any person.
15[) N() 191x2 GOVERNMENT GAZETTE, 26 AI.JGLJST I YX+
Ad No. 36, 1998 NATIONAL WATER ACr, 1998
(z) rhc [:li[llrc I() [kc tiny sleps required in terms of this Act as a prerequisite Ior any
decisitm or :Ic[itm does not inv:didu(e [be deci~ion or action ii the Failure
((/) ii nt)l nlateriul;
(b) hil\ subwqucntly been rectihed; and
(t) does m)[ prejudice my person. 5
(3) A tuilurc in good Iiiitb to comsult with or send nolice to any relevant person or
body LLS required by this Act does n(N invAidate any act of or process for which such
cx)nsullalion is a prerequisite.
Service of documents
162. ( I ) Any notice, direc[ive or other document in terms of this Act, must be I ()
scrvcd
(ti) if it is to be served on a natural person-
(i) by hand delivery [o that person;
(ii) by hand delivery to a responsible individual al that persons business or
residential address; Is
(iii) by sending it by registered mail to that persons business or residential
address; or
(iv) where that persons business tind residential address is unknown. despite
reasonttblc enquiry, by publishing ii once in the Ga~,cfl< and once in a
Ioctii newspaper circulating in the area of that persons last known 20
residential or business address; or
(b) it it is intended kr a juristic person-
(i) by hund deli\ery to u responsible individual tit the registered address {~r
principtil place of business of that juristic person;
(ii) by sending it by facsimile to the registered address or principal place of 25
business of that juristic person;
(iii) by sending it by registered mail to the registered address or principtil
place ot business ot that juristic person;
(iv) by conspicuously attachirlg it to the muin cntrunce of (he registered
wldrcss or the principal place of business of that juristic person; or 30
(v) by htind delivery tt~ :my mernbet- ot th:it jLlristic persons btxtrd of
direclors or governing body.
(2) Any notice, directive or other document served wwrding to subsection ( 1 ) is
considered to have come to the notice ot the person, unless the contrwy is proved.
163. ( 1 ) The laws sel out in Schedule 7 arc hereby repe~lled to the extent set f)tlt in tll~
third column ol that Schedule,
(2) This Act overrides tiny provision in o prior Itiw cxempling u person from paynwn[
of:1 charge, or limiting payment to a Iixed chiu?ge for water usc
(3) Anything done under a law repe:ded by this Act remains vt]lid 40
(~1) to the extent that it is not inconsistent wi[h thi$ Act; :md
(h) until anylhin: done under this Ac( overrides it.
(4) Any regulation mwic under a law repealed by this Ac( remains in (brce wd is
corlsidercd to have been made under this Act
(a) to the extent that it is not inconsistent with this Act; and 45
(b) until it is repealed by the Minister under this Act.
164. This is the Nation:d W~ter Act, 1998, which takes eltec[ on a date fixed by the
President by proclmnati(m in the Gti:,cI[cJ.
}5? N(I 101X2 GOVERNMENT (; AZJ3TTE, 26 A(JGLIST 1998
Schedule 1
Schedule 2
the clairntint exercising his or her rights undt r section 128 of the Act: or
(~1~
(h) objections to the notice by the owner olthe Iaird subject to the servitude or the
owner of the land in favour of which the serl itudc is claimed.
7. An arnemled notice must be dealt with in the sane way as the original notice
8. A claimant may, not earlier than 14 days and not la er than 90 days ufter the notices
required in terms of this Schedule have been given, apply to the High Court for the
award of a servitude claimed in terms of the procedure set out in this Schedule and the
High Court may make such order as it deems tit.
Schedule 3
General
Power to manage, monitor, conserve and protect wat:r resources and to implement
catchment management strategies
specifying an address to which and a date >efore which the comments are
to be submitted, which da[e may not ]e earlier than 60 days after
publication of the notice:
(b) consider what further steps, if any, are appropr ate to bring the contents of the
notice to the attention of interested persons. : nd take those steps which the
catchment management agency considers to b t appropriate;
(() consider all comments received on or before ~ he date specified in paragraph
(a)(ii); and
(d) consider all applicable
.. conditions for provisio I of services and byltiws made
under the Water Services Act, 1997 (Act No. 108 of 1997), by water services
institutions having jurisdiction in the area in c uestion.
(6) After complying with subitem (5), a catchment nianagernent agency mLlst-
(CZ) finalise the rules; and
(b) make it known, in an appropriate manner, !h: t the rules have been finalised
and where they may be read; or
(c) deliver or send a copy of the rules to each watt r user to whom the rules apply.
Schedule 4
Governing board
1. ( 1 ) The board-
((J) is responsible for the management of the afhirs of the water management
institution; and
(b) may exercise the powers of the institution.
(2) Without limiting subitem ( l), i! is the role of the board
(a) to decide the strategies and policies to be followed by the institution; and
(b) to ensure that the institution exercises its powers or performs its duties in a
proper, efficient. economical and sustainable manner.
(3) The board must carry out its functions as efficiently as possible, consistent with
prudent commercial practice.
(4) in the absence of the chairperson, the deputy chairperson performs all the
functions of the chairperson.
3. ( I ) The board may appoint a suitably qualified person as chief executive oflicer of
the institution.
(2) The chief executive officer of the institution holds oftice on the terms and
conditions determined by the board.
(3) The board may remove the chief executive oflicer of the institution from oflice,
(4) The Minister may, for good reasons and after consultation with the board, direct
the board to remove the chief executive ofiicer from ofke.
(5) The board mus[ comply with a directive given by the Minister under
subparagraph (4).
(6) The functions to be pet-formed by the chief executive otticer in terms of this
Schedule may also be performed by the chairperson or any other officer designated by
the chairperson.
(7) The board must, in consultation with the Minister of Public Service and
Administration, determine the sal~ry of its chief executive oflicer, subject to the
approval of the Minister.
Validity of decisions
6.( I ) A board member must ;It idl (itnes act honestly in performing [he foncti(ms (Jf his
<)r her olticc.
(2) A bored member nlLIst tit all times exercise a reasonable degree ot care find
diligence in pmlorming a members functions, :md in furthmmce of this duty withtw~
limiliog i[s scope, inLIst-
((() ttike reastm;]hlc steps tu inkmn hinrseli or herself shout the institution. ils
business :mci ilctivities :md the circumstances in which it operates;
(b) take reasonable steps, through the processes of the board, [o obtain sufficient
informti(irm and advice shout til I matters to be decided hy the hoard to cnuble
him or her (() nlak conscientious and informed decisions: and
(t) c.xercise CIIt uclivc discretion with respect to all miitters [() bc decided by the
bourd.
(3) A board mernhcr need not give ctmtinu(JLl\ ~mcnti(m 10 the affairs of the homl, but
is requirut 10 exercise reas(~[ldie diligcncc in relation to-
([/) the business of; and
( b ) prcpwati(m Ii)r und ;Illendwlct! at nlcetitlgs ol,
the boml A any con~nlit[ce (o which the board nwmher is appoin[ed.
(4) In determining the degree O( ctirc ~Iod diligence required to be exerciwt by a
hod member. regard must he had to the skills, knowledge or insight powcsscli hy tila(
member. and tt) [he cicgrcc 01 risk involvc~i in any p:wticui:tr circulns[ilncts.
(5) A board member. or former ixmrci member, must INN muhe impmper LIW (~t his (w
her i)osition :1s a metnbet- or (JI inf{nmw[ion :wquircd by virtue (~t his or hcr positi(m its
u member m gain, dircctiy or indirectly. an advanltlge for ililnseif ~~r i~~rseii or fOI WIY
otiwr person, or [(~ prcju Liicc the institution.
(6) Tilis item mLIs[ be interpreted LIS wkiing to. mwt not cicviuting tr~ml. any l:L\~
rciating In the criminul or citil iiabiii[y oi a member ot a go\erning b(xly ~)i a ctwp(n:(te
txxiy. :md it does not prcvcn! My crimin:d (jr civil proceedings being instilutc(i in respect
t~f such u ii:ibiiity.
I)isclosure of interest
(2) If the board member is present at a meeting of the board at which the matter is m
be considered, the board member must disclose the nature of his or her interest to the
meeting immedi~(eiy before the matter is considered.
(3) If the hoard member is aware thtit the matter is to be considered at a meeting of
the bowl ot which he or sbe does not intend to be present, he or she must disclose tbe
nature ol his or her interest to the chairperson before the meeting is held.
(4) A board member who has made a disclosure under this pardgraph must not
(L1 ) be present during any deliberation; or
(h) take part in any decision,
of the bowl in relation to the matter in question.
(5) Any disclosure made under this paragraph must be noted in the minutes of the
relevant meeting of the board.
8. [f a person contravenes item 7, the institution, or the Minister in the name of the
institution, may recover from the person as a debt due to the institution, through u
competent court, either or both of the following
(a) if that person, or any other person, made a profit as a result of the
contravention, an amount equal to that profit; and
(b) if the institution has sufiered loss or damage m a result of the contravention,
an amount equal to that loss or damage.
Convening meetings
Notices of meeting
10. ( 1 ) Except as provided in subitem (3), the chairperson or the chief executive
ofticer must give at least seven days written notice to board members of any meeting
convened at the request of one third of the board members.
(2) A notice given in terms of subitem ( 1 ) must
(a) specify the date and time of the meeting; and
(b) state the general nature of the business of the meeting; and either
(L) state the place of the meeting; or
(d) specify the means of communication by which the meeting will be held.
(3) The chief executive officer or chairperson must give notice of a meeting
(a) in writing; and
(b) not less than seven days in advance except in cases of emergency or where
every board member agrees to accept short notice.
(4) If notice of a meeting is given [he board must, if requested by a board member,
allow that member to participate in the meeting in the manner contemplated in item 16.
(5) The proceedings of, or resolutions passed at a meeting of, a board are not invalid
merely because
(a) the chief executive officer omitted to send a notice [o a board member; or
(b) a member did not receive a notice of the meeting.
lox N,). 191X2 (GOVERNMENT GAZETTE. 26 AUGLJSI 19CJX
Quorum
Adjournment
Voting
Minutes
15. ( 1 ) The chief executive oticer must ensure thut complete and ticcurtite minutes ot
each meeting tire kept.
(2) [X:lf[ nlinLltes of each meeting nlust-
((L) be prcscn(ed to the next meeting of[he board for amendment, if necessmy, and
ildoption: and
(b) be entered in a durable, bound volume of minutes.
(3) The person presiding at the next meeting must sign and date an affirmation to the
ellect thut imy minutm ot [he previoL]s meeting have been adopled by the meeting.
lanticipation in meetings
17. ( 1 ) 1[ all the board members for the time being ({ther than a board member who
is absent from South Africa at the time) sign a document containing a statement that they
are in fi~vour of a resolution set out in the document, a resolution in those terms shall be
taken to have been passed at a meeting of the board held on the day on which the
document is signed or, if the members do not sign it ( n the same day, on the day on
which the last member signs the document.
(2) For the purpose of subitem ( 1), two or more sc parate documents containing a
statement in identical terms, each of which is signed b y one or more board members,
must be taken to he one document,
(3) A document referred to in this item may be in the form of a telex or facsimile.
Execution of documents
Appointment of committees
20. Subject to this Part, the board may regulate its o\ m proceedings.
Business plans
22. Each business plan must be in the form determined by the Minister and
(o) must set out the objectives of the institution:
(b) must outline the overall strategies and policies that the institution is to follow
to achieve the objectives;
17? N(I 19 I X2 GOV: IRNMENT GAZE, It_ti ?6 AUGUST 1998
(() must include a slatcment of the services v hich the institution expects to
provide and the standards expected to be achi~ ved in providing tbosc services;
(d) must include the financial and performance i ldicators and targets considered
by the board [o be appropriate;
(c) may include any other information which the mard considers appropriate; and
(/) must include any other information delermin:d by the Minister.
24. [n preparing or revising a financial target. Ik fwmf must have regard t(l
({/) the need to nlilin(ain [be institutions financi:l viability;
(b) the need to maintain a reas(mablc ICVCI of rese ves, especially to provide for
(i) corrective action to redress the resuits oi past ra~iill and gender
discrimination in the use of witter resouces;
( ii) any estimi]ted tuture demand for the ser~ices of the institution: and
( iii) any need to improve the accessibility ot. and performance st~ndarcfs for.
the services provided by the institution; and
(c) other matters determined by the Minister.
25. ( I ) When the hoard prepares or revises a business plan. it must immediately make
a copy oti the pliln i[v:iilitble to tbe Minister.
(2) The Minister m:ly -
([1) within 60 days after receiving a copy of a prpitred plan: or
(h) within 30 days atlcr receiving a copy of a re ised plan.
make comnwnts on the plan to the board.
(3) The board must consult in good ti~ith with the Mi lister following communication
to it of the Ministcl-is commenls and must make any clxinges to tbe plan that are agreuf
upon by the Minister and the board.
(4) The Minister miiy, from time to time, direct the b xmf to include in. or omit from,
a business plan, any matter, including a financial matter.
(5) Bclore giving a directive under this item, the vtinister must consult wi[h the
boiud as to the matters to be included in the directive.
(6) The board must comply with a directive given Lmler this item.
26. If matters arise that ]might prevent. or rnaterii [[y afiect. achievement of_ the
objectives of the institution in terms of the business pl: n or financiid targets contilined
in the business plan, the board must immediately notify the Minister of the existence of
sLIch matters.
I 74 N,). 191 X2 Gf3V ,3 RN M13NT GAZETTE, 26 AUGUST 1998
27. The institution must act only in accordance with i s business plan, as it exists from
titne to time, unless the Minister has directed otherwis ?.
28. ( I ) The Minister may direct the board to give hin or her specific information.
(2) The board must comply with such directive.
29. ( I ) An institution must provide the Minister or any person authorised by the
Minister with
(a) the information which tbe Minister requir :s on the afTzairs and financial
position of the institution; and
(b) access to such books, accounts, documents aid assets of the institution as the
Minister may require.
(2) The Minister may appoint a person to investigate ~ the affairs or financial position
of an institution and recover the reasonable fees and di ;bursements of that person from
that institution.
(3) A board member and an employee of a board h Ive the same duties towards the
Minister or a person authorised by the Minister as a[ institution has in subitem ( I),
except to the extent that the board member or employee can show that he or she is unable
to comply.
30. The Minister or a person authorised by the Mini;ter may enter into the premises
of any institution and take possession of any book, record or asset of the institution
where this is necessary in order to obtain any inforn Iation to which the Minister is
entitled in terms of this Part or for the purposes of any nvestigation that the Minister is
entitled to conduct in terms of this Part.
Offence
31. Any institution. board member or employee of I he board who does not comply
with items 28 to 30 or obstructs a person appointed L rider item 29(2) is guilty of an
offence and liable on conviction to a sentence contem~ Iated in section 151 of the Act.
32. (I) The financial year of an institution is for a 12- nonth period determined by the
hoard.
(2) The board must ensure that the chief executive c fficer of the institution keeps
(a) proper records and accounts of the activities, transactions and affairs of the
institution and of the board; and
(b) any other records or accounts that are nece:sary to explain sufficiently the
financial operations and tinancial position of the institution.
(3) The board and the chief executive officer of the ir stitution must each do all things
necessary to
((J ) ensure that all money payable to the institutil m is properly collected:
(/}) ensure that all money spent by the institution is properly spent and properly
authorised:
I 76 N(). 1)182 (; OVFRNMENT GAZETI%,26AUGLJST 19[)8
(() ensure that there is adequate control overall [.ssets acquired for the purposes
{Jf[he institution, or managed orcontrolled b{ it;
(,/] ensure thti[ all liabilities incurred cm behalf of the institution are properly
authorised:
([) ensure efficiency and economy of operations and avoidance of wtiste and
extravagance;
(i) developand maintain anacfequate budgeting and accounting system; and
(,s) develop and maintain an adequate financial c!mtrol system.
Annual report
33. ( i ) An institution mmt. in respect (If each financii:l year, prepare an annuiil report
containing-
(a) a report of its operiltions during the financial year:
(b) fillilllCiiIl statements for the financial year; MI f
(() il copy of each directive given to it during th: t year by the Minister.
(2) The instituti(m mus[ submit the report to the Mi tister not litter thilt) six months
after the end of the financial year in question.
(3) The report of operations reterred to in subitem ( I )(a) must be prepared in a form
amf contain information determined by the Minister.
(4) Tlw fina[l~iill statements rclcrred to in subitem ( I )(/J) must be consistent with
generally accepted accounting practices and must C( ntain the information and be
prepared in the manner and for-m determined by the Minister.
(5) Such financial statenwn(s must-
([I) fairly present the results of the financial trans wtions of the institution during
the financial year to which they reli]tc ilnti the financial position of the
institution
ils at the end of the year: and
(h) he aucfi(ed hy a chartered ~i~~oul)til[lt appoint(d by the board.
(6) The imstituti(m must puhfish its annual rcp(wt aI d make copies available at the
{)fficcs of the instituti(m for inspection and purchase by the public,
(7) The institution must-
([I) if it is a catchrnent management agency. table its annual report in Parliament:
or
(b) if it is a water user iissociatk)n, send a LX)py [f i[s annual report to the Secretary
to Parliament.
I 78 N(). 19182 GOVERNMENT GAZETTE, 26 AUGIIST 1998
Schedule 5
Name of Association
5. ( I ) lhe Assocititi(m nMy pcrlbrn] functions other than its principal functions only
it it is not likely
((I) to limit the Associ:itions copaci[y to perform its principal functions; and
(b) tt) be to the tin:uwial prejudice of itself or its members.
I 80 N,). 19182 GOVERNMENT GAZEITE, 26 A[JGUST 1998
Founding members
6.( I ) The founding members of the Association are the members whose names appear
in Annexure 1 of this constitution and wbo have been authorised by the proposed
participants to act on their behalf in establishing the Association.
(2) The founding nlembers will, for purposes of arranging the first deCtlOn Of
members of the Management Committee, be considered to be the Management
Committee of the Association with powers and duties limited to arranging the election
in accordance with this constitution.
7. ( 1 ) The first members of the Association are the persons who, during the
consultation process, indicated their willingness to become members of the Association
and whose names appear in Annexure 2 of this constitution.
(2) Application for new membership of the Association must be addressed to the
Management Committee which must, at a meeting of the Committee, consider an
application and approve it unless there is good reason to refuse it.
(3) An association must allow a person to become a member of the Association if
directed by the Minister to do so.
(4) A member may only resign as a member of the Association with the approval of
the Management Committee, which may not unreasonably withhold its approval. [Note:
A reason for not accepting a resignation would be, for example, if the resignation
would detrimentally affect the Associations ability to meet its financial commit-
ments in respect of infrastructure provided to serve the member concerned.]
Register of members
8. All members must communicate their addresses from time to time to the person
acting as secretary of the Association, who must keep a register of the names of
members and of their addresses.
Rights of members
9. ( 1 ) Membership of the Association does not give any member a right to any ot the
moneys, property or assets of the Association, but only gives members the privileges of
membership, subject to such charges and reasonable restrictions as are imposed by the
Management Committee from time to time.
(~) A member whose application for membership has been approved is bound by the
constitution and rules of the Association which are then in force or as they are
subsequently amended.
Liability of members
10. The liability of members is limited to the amount of unpaid charges and interest
thereon owing by them to the Association.
eligible for election as a mernher of the Management Committee for the sub-area in
which tha[ member resides.
12. Any person whose mrme is on the voters list of the Association may norniniile
candida[m for election as members of the Mamrgernent Committee and may vote at an
election of members of the Committee. A person whose name appears on a voters list
prepared fur a sub-area of the Associations area of operation, will be entitled to
nominate candidates and to vote only in elections for that sub-areu.
[Note: The following are options. Others may be proposed. Choose and number
your options.]
14. ( I ) option (a) After the election of the Management Committee tbe members of
IM N{). 19182 GOVERNMENT GAZEIIE 26 AUGUST 1998
that Committee must elect ti chairperson and deputy chairperson ofthe Association from
amongst their nwmbers. The Management Committee may appoint any person to chair
the proceedings for (hat purpose.
option (b)
( 1 ) Aficr the election of the Mantigement Committee the members of the Associati[m
must elect u chairperson und u deputy chairperson of the Association from amongst the
elected members of the Management Committee. The members of the Association m:iy
appoin[ any person to chair the proceedings for thirt purpose.
(2) The chairperson and deputy chairperson hold office for a period of 12 months
from the date of their election and may be re-elected.
(3) When the period 01 oflice of a chairperson or deputy chairperson expires, thtit
person will, provided that he or she remains a member of the Association, remain in
ottice until the next meeting O( the Management Committee.
(4) A new chairperson and deput y chairperson of the Management Committee will be
elected annually. Should any of these ofiices be vacated before the term expires, the
office must be tilled immediately according (o the procedure set out in this item.
Voters list
15. ( 1 ) The founding members of the Association must select a person to prepare a
voters list for the tirst election of members of the Management Committee. The voters
list must show
(a) the names of all members included in Annexure 2 to this constitution and,
where appropriate, the name of a members uncredited representative;
(b) piirticukrrs of each members entitlement to wtiter use; and
(c) the number of votes a member is entitled to.
(2) If the Associations area of operation is divided into sub-areas, the voters list
must also be divided into subareas and the particulars referred to in subitem ( I ) must be
shown under the respective subareas.
(3) The number of vo[es will be determined on the following basis
[Note: The following are options. Others may be proposed. Choose and number
your options.]
Option (a)
(lne vote per entitlement to water use.
Option (b)
A pro-rota number of votes in proportion to the quantity of water authorised under a
particular entitlement, compirred to the total quantity of water under all o! the
entitlements registered with the Association. In this calculation all fractions must be
rounded oft to the next higher figure.
Option (c)
A pro-rata number of votes in proportion to the quantity of water authorised under a
particular entitlement, compared to the tottil qwmtity of water under all the entitlements
registered with the Association. In this calculation-
(i) all fractions must be rounded off to the next higher figure; and
(ii) no member will be awarded more than 10 votes.
Option (d)
One vote for every tive hectares or part of five hectares of land that can be irrigated in
terms of a members entitlement.
Option (e)
one vote for every iive hectares or part of five hectares of land that can be irrigated in
terms of a members entitlement, provided that no member will be awarded more than
1 () voles,
(4) If the entitlement to use water is not in the mtme of a natural person, the holder
must nominate an occreditcd representative whose name must appear on the voters I ist
and who may exercise the vote.
(5) If the entitlement is in the name of two or more persot;s they must designate one
of their numbers to represent them and that persons name must appear on [he voters list
and he or she may exercise the vote.
(6) The voters list must annually be revised by the Management Committee and also
whenever there is an amendment to the Associations area of operation.
I X(l N(). 19[X2 (;C)VE <NMENT GAZETTE, 26 AUGUST 1998
Appointment of employees
[Note: The appointment of a Chief Executive Officer for the Association is dealt
with in Schedule 4 to the Act. ]
Raising of loans
17. ( I ) The Management Committee may raise by way of loans. including bank
overdrafts, any funds required by it for the purpose of c.lrrying out any of its functions
under this constitution or the Act.
(2) Whenever the Management Committee propose; to raise a loan. it must give
notice in writing of its intention, setting out details of the proposal. The notice must be
given to every member of the Association not less than 21 days before the date ot the
meeting of the Committee at which the proposal will be considered.
(3) No loan may be raised without a resolution o the Management Cotnmittee
passed at a meeting at which not less that two-thirds of he members 01 the Committee
are present.
18. ( I ) For the purpose ofdefraying any expenditure tk at the Management Cmmmittee
has lawfully incurred or may lawfully incur in carrying out its functions and duties it
may tinnually tissess charges on members according to tbe pricing strategy for water use
set by the Minister.
(2) The Management Committee may recover the ch lrges assessed from either
((~) the owners of the land concerned; or
(b) any person to whom water is supplied on the and.
(3) Whenever the Management Committee has assessed a charge, the Committee
must prepare an assessment roll setting forth-
(a) the name of each member liable to pay charg~s;
(b) a description of the piece of land, which may b: a specially delineated area, in
respect of which the charge is assessed;
(c) the quantity of water or abstraction time period to which the member is
entitled;
(d) the amount of the charge assessed;
(e) the date or dates on which payment is due am the amount due on each date;
and
(H the rate of interest payable on non-payment ar d the effective date of interest.
(4) A copy of the assessment roll must lie open for inspection in the otfice of the
Association at all reasonable times by any member of tl e Association.
Annual Report
[Note: The following are options. Others may be pr )posed. Choose and number
your options.]
Option (a)
19. The procedure as set out in Schedule 4 to the Act applies.
[Note: This option is only recommended for use b.~ well-established irrigation
boards with a large membership and which are transformed into water user
associations after promulgation of the Act.]
Option (b)
The Management Committee must. within three i nonths after the end of the
Associations financial year, convene a general meetinf of members and must at the
meeting
(i) table an audited financial statement of the l.ssociations accounts for the
preceding financial year, including full particulars of any remuneration paid
by the Association to members of the Managen ent Committee and employees
of the Association; and
188 No 191X2 G(3VI IRNMENT GAZETTE, 26 AUGUST 1998
(ii) give an account to the members of its activit es during the year,
Winding up
[Note: The following are options. Others may be proposed. Choose and number
your options.]
Option (a)
ANNEXURE 1
LIST OF MEMBERS
ANNEXURE 2
ANNEXURE 3
190 N,) 1 I X2 G(3V ;RNMENT GAZETTE. 26 AUGIIST 1998
Schedule 6
WAI%R TRIBUNAL
[Section 148(4)]
Disqualification of members
5. ( I ) An appeal to the Water Tribunal under sectiori 148( I ) and an application for
determination of compensation must be commenced by serving a copy of a written
notice of appeal or application on the relevant responsible authority or catchment
management agency and lodging the original with the ribunal.
(2) The Tribunal may, for good reason. condone th: late lodging of an appeal or
application.
(3) A responsible authority or a catchment mana},ernent agency against whose
decision or offer an appeal or application is lodged must within a reasonable time
(a) send to the Tribunal all documents relating t) the matter, together with the
reasons for its decision; and
(b) allow the appellant or applicant and every party opposing the appeal or
application to tnake copies of the documents .md reasons.
6. ( I ) An appeal or application before the Water Tri renal must be heard by one or
more members, as the chairperson may determine.
(2) A party to an appeal m application maybe represented by a person of that partys
choice.
(3) Appeals and applications to the Tribunal take the form of a rehearing. The
Tribunal may receive evidence, and must give the appell mt or applicant and every party
opposing the appeal or application an opportunity to pr :sent their case.
(4) The Tribunal must keep minutes containing a slmmary of the proceedings of
every hearing.
evidence or [o produce any book, document or object before a court of law, applies to the
qucs(ioning of my person and (o [he production of any book, document or object in
lerms of this item.
(4) The party at whose request a subpoena was issued must pay witness fees, travel
and subsistence allowances to u person subpoen~ied 10 appear before the Tribunal, M the
applicable High Court scale.
(5) The Tribunal mtiy administer an oath or uccept an a!lirmation from any person
ct]lled or subpoenaed to give evidence.
9. ( I ) The Water Tribunal must give its decision in writing. A majority decision of
members hearing a matter (if the matter is heard by more than two members) constitutes
a decision of the Tribunal.
(2) The Tribunal must, at the request of any party and within a reasonable time, give
written reasons for its decision on any matter.
I oh N(I 19182 GOVERNMENT GAZETfE, 26 AUGUST 1998
Schedule 7
ACTS REPEALED
Act N(). 28 of 1965 Great Fish River Irrigation Di\trict Adjustment Amend- The whole
ment Ac(, 1965
Act N(). 71 of 1965 Water Amendment ACI, 196S The whole
Act N(). I I of 1966 Wa[cr Amendment Act. 1966 The WbOk
Aci No. 53 of 1966 Romfcpourt and Wel(evreden Agriculluml Settlements The whole
Acljwstments ACI, 1966
Ac[ N,). 71 of 1967 Vaal River Developnwlt Scheme Amendment Act, Tbe whole
1967
Act No. 73 ut 1967 Ma fchirrg Waterworks (Priviue) Amendment Act, 1967 The whole
Act N(), 79 of 1967 Water Amendment Act, 1967 The whole
Act N{). 34 of 196X Wawrval River ( Lycienhurg) Act, 1968 The whole
3)() N(), 19182 GOV:RNMf3NT GAZETTE, 26 A(JGUST 1998
I Act No. 105 of 1977 Vaal River Development Scheme Ar Iendmenf Act,
t Q77
The whole
I